February 2007

The form in which you receive electronically stored information can make or break a case. The new FRCP rules provide for document production in various forms. Selecting the proper form in your situation can save costs, and/or provide additional information. There are four primary forms of production:

  1. Native
  2. Semi-native
  3. Paper
  4. Semi-paper

As described in more detail below, the proper choice will depend on:

  1. Metadata – Is there likely to be beneficial metadata?
  2. Size – It may be overwhelming to produce an entire database; subsets might be more prudent.
  3. Do you want to perform text searches?
  4. How important is traditional document production (Bates) numbering?
  5. Do you need to redact documents?
  6. How sensitive is the possibility of evidence spoliation?
  7. Is there potential forensic evidence?

Native Production

If the party requests a native form production, the responding party provides the requesting party with the documents “as is.” For example, if the producing party used Microsoft Word internally for generating and storing documents, they would provide the requesting party with unmodified (native) Word (.doc) files.

The requesting party accesses these files by opening them within the licensed software (in this example, Microsoft Word). When multiple document types exist, a more practical approach uses a modern document management software solution. The native files are imported into the central database maintained by such software, which then allows access to searchable metadata and document text.

Forensic hard drive imaging (i.e., copying all information that remains on the disk even if this data has been “erased”) will identify further native information. This includes prior drafts, “deleted” files, usage logs maintained by the operating system, and even evidence of spoliation. This evidence would not normally be found through traditional electronic discovery.

A common misconception is that native production allows an opponent to alter the production without being discovered. This can be prevented by using electronic file signatures (hash totals) that will identify even the smallest data alteration. Here is a summary of the pros and cons that you need to consider:

PROS: Native data provides easy access to all data, including metadata. Native files retain the original look and feel without translation. There is the potential to implement forensic evidence.

CONS: Originals can be easily modified – with or without intent. Bates numbering becomes inefficient, and requires modifying the original document. There is no easy means for creating redactions with native documents.

Semi-Native Production

Requesting documents in a semi-native form is common when dealing with large databases or files. The electronically stored information is provided consistent with the original data, but in a slightly different format, form, or subset.

Requesting semi-native data may occur when desiring electronically stored information in a more usable or convertible form. For example,

  1. Databases often contain far more information than what is relevant to the case. Selectively exporting relevant subsets is an effective means of reducing discovery costs and eliminating relevancy objections.
  2. Exporting data that is written in a software’s unique proprietary format (i.e., a fully native production) to a more common format allows the information to be used without (i) purchasing additional software, and (ii) incurring the training cost of using such unfamiliar software.
  3. When produced in a software’s unique proprietary format, one might not be able to understand the production because field names or other documentation might be obtuse and confusing.

Here is a summary of the pros and cons that you need to consider:

PROS: Production in a semi-native form can create select subsets that reduce size, cost, and effort. Semi-native production can put data into a more readily accessible form. By changing the original data, redactions (i.e., filtering out irrelevant records) can occur.

CONS: Originals can be easily modified – with or without intent. As occurs with native productions, Bates numbering becomes inefficient, and requires modifying the original document. To the extent that the data is different from the original, additional documentation is required concerning the data structure and source. Original metadata may not be included.

Paper Production

Our old friend in the discovery process. In small cases, paper may be the most efficient form of production.

Here is a summary of the pros and cons that you need to consider:

PROS: Ideal for small cases. Bates numbering works well.

CONS: Paper has none of the advantages of computerized searching, computerized sorting, efficient storage, metadata, etc.

Semi-Paper Production

This form is the most commonly used method today. This involves “electronically” printing documents to files instead of paper. The files are commonly stored in .TIFF or .PDF format, along with optional metadata and text associated with the original files. This method is accepted by most courts, and is becoming the default practice.

Here is a summary of the pros and cons that you need to consider:

PROS: The equivalent of paper documents stored on a computer makes the documents easier to access, copy, and store. Searchable metadata and text information may be available. Semi-paper files usually retain their original look and feel. Files cannot be altered easily. This form allows easy Bates numbering and the ability to redact confidential information.

CONS: Semi-paper documents will not have metadata or searchable document text unless properly coded. Underlying document formulas, tables, macros, etc. are lost.

When requesting or objecting to production in any of the above formats, be prepared to communicate technical and financial reasons as to why the production should or should not be made. Technical consultants can be quite helpful in understanding your particular situation and then framing proper arguments.

Because each case is different, there is no right or wrong answer for every situation. However, in many cases, native production should be used, but is not used only because of attorney discomfort with the additional required procedures.

Careful consideration and review is needed at the very beginning of your case planning. Properly requesting the right information could be the difference between a smooth discovery process and a costly process that obtains less information.

Fulcrum Inquiry prepares damages analysis, expert witness testimony, and forensic accounting.