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By Erich Potter

Published on Thu, September 8, 2016

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Document productions consisting of TIFF images with extracted text and load files have been the production format of choice in ediscovery for many years now. Static TIFF images provide a number of unique benefits because they can’t be altered, reviewers can’t easily forward or reply to a live email thread, and unique page references can be added for ease of tracking.

However, in some matters it can make economic sense for parties to exchange native productions (files as they are normally stored on a computer with extracted text and load files). While you lose many of the benefits of static images, by forgoing the process of imaging and stamping the parties can reduce the cost of production. But, without proper planning, those savings can quickly disappear. Here are some practical tips for managing native document productions:

  • The details of a native production format should be agreed upon with opposing counsel and set down in an ESI agreement well before you make your first production. You shouldn’t be surprised that lawyers can come up with many different interpretations for the term native.
  • File names of produced documents should include the document level Bates number and any confidential designation. For instance, Draft_Commercial_Agreement.doc is produced with the file name LGHT_3456234_CONFIDENTIAL.doc. Changing the file name doesn’t affect any of the document’s other metadata and the original file name is produced in the DAT file.
  • Stipulate in your ESI agreement that any document filed with the court, used in a deposition, or included as a trial exhibit is printed to PDF and stamped with the document level Bates number, page number, and confidentially designation. In addition, be sure that the parties promptly exchange any such PDF files.
  • Emails don’t have to be produced as MSG files. MSGs are just one of the ways in which the information we consider to be an email is stored. When producing natives as MSG files, the attachments are produced twice; once as an extracted individually numbered document and again as part of the parent MSG file. Such duplication can quickly drive up data hosting costs. Instead, email messages can be produced as MHT files, which are a form of HTML file that includes all of the information found in MSG files at a fraction of the size.
  • It’s important to set up workflows both internally and with your ediscovery vendor to blowback native documents from your database. Should an attorney want all of a witnesses’ hot documents printed and sorted into binders, be sure you incorporate the necessary lead time so those documents can be imaged and stamped in advance. You should think of these as mini-productions and, like large productions, a little heads up helps a lot.
  • Include in your ESI agreement a provision that documents (and their family members) designated as attorney eyes only and/or confidential will be produced as TIFF images or PDFs. That way the confidentiality designation can be stamped on each and every page.
  • Consider allowing other sensitive documents to be produced as static images. Sure, every email sent by the CEO won’t be confidential, but the client may have concerns about a high profile CEO’s emails and email address getting out into the world. In a case where the CEO isn’t at the center of the dispute and has only had a handful of relevant emails, an agreement to produce all of their emails as images is not likely to be objected to by opposing counsel. Just be sure to come to this agreement prior to production. Surprises in discovery, however reasonable, are rarely welcome.

All in all, knowing your data, being prepared, and being flexible can make native productions a cost effective and efficient way to exchange documents in discovery. If you have any questions or would like to further discuss this topic, feel free to reach out to me at epotter@lhediscovery.com.


About the Author
Erich Potter

Technical Project Manager

Erich has extensive experience around discovery issues for complex construction and commercial litigation matters. He has a B.A. from Washington State University and J.D. from American University in Washington, DC. He also holds a certificate in ediscovery from the University of Washington.