I speak about cost mitigation strategies in ediscovery several times a year so it is no surprise I am a big proponent of producing documents natively. If you can skip, or limit, imaging documents, you are saving yourself a significant amount of money. I recognize that in certain cases, a native production is not appropriate (e.g. where excel formulas are proprietary). But where possible, counsel should at least consider producing all documents natively. How do you do that?
In order to successfully execute a completely native production, there must be a cooperative atmosphere between the disputing parties, primarily because traditional reliance on bates numbering is not effective in native productions. While common sense suggests the naming of files with a bates number should be adequate, parties often fail to account for how to identify specific pages within a document. In a deposition, one cannot just refer to “page 3” of the document bates labeled ABC000005 because different operating systems will paginate the documents differently.,,)
So why not just image and bates label the documents you will use? I know of one instance where the parties agreed to produce natively but then TIFF the relevant documents prior to each deposition and bates label them at that time. The problem here was that you had to notify the other side of which documents you were going to use (because under the agreement they needed notice of what would be TIFFed) thus revealing your strategy. It also meant that the order of the bates numbers actually correlated with what order documents were used in the case, rather than with the order the documents were kept in the ordinary course of business. Finally, this method could mean higher charges for each imaging project since the volume of each project is so low, and minimum charges may apply.
There are a multitude of ways to handle this issue and frankly who has time to try each out! Instead of reinventing the wheel, we can just read about what worked in Craig Ball’s article on how he handled this exact problem!
Also if you have produced documents natively and have a good way to handle this issue, I’d love to hear it.