Shouldn’t we be aghast that firms still deal with tracked changes and comments in Word documents by simply wishing them away?  “It isn’t discoverable if it wasn’t in the final version” is a risky rationale.  “It might be privileged, so quietly remove it all,” is well, kinda nuts.

Here’s why: Consider that ESI can be broadly characterized as a record, a communication or a hybrid of both.  What we store for retrieval is a record, and what we transmit is a communication.  There’s much crossover, and sometimes we show instead of tell.

A contract is a record of a transaction, but it’s also a communication to those executing it.  A draft of a contract with tracked changes is a record of the document’s development incorporating the drafter’s communication to him or herself in the form of notes, highlighting and the like.  If shared collaboratively using tracked changes and comments, the proposed edits are communications.  Rather than describe the proposed changes in a conversation, the proposed changes are exemplified via the collaborative features of the software.  Shown, not told.

Typically, face-to-face communications and most telephone conversations aren’t preserved electronically.  They vanish in the ether.  There may be testimony about the communication, but absent an objective record of how the air vibrated or wire pulsed at the time lips moved, there’s nothing tangible to put on legal hold or produce in discovery.  This made lawyer’s lives simpler…and harder, because proving what was said can be tough when the parties offer conflicting accounts.

But what if the communication was recorded?
That recording—electronically stored information—would be powerful potential evidence.  Parties and counsel may wish it didn’t exist, but they cannot pretend it doesn’t exist.  Its existence comes coupled with a duty to identify, preserve and produce it in discovery when relevant and not privileged.

Accordingly, the law doesn’t permit a party in possession of a relevant recording to secretly suppress it because the party unilaterally deems testimony about the conversation to be sufficient or because recordings are slow and tedious to review. Likewise, parties cannot unilaterally elect to produce only the audio or only the images of video recordings.  We don’t get to edit out the parts of evidence we prefer didn’t exist—at least not without formally asserting a right to do so and disclosing the fact of redaction.

Yet, suppression of potentially relevant communications is what often occurs when parties convert native documents to images.  Application metadata like tracked changes, comments and collaborative communications, are typically stripped out or produced in an out-of-context fashion rendering them all-but-unintelligible.

Junky Justification
Counsel may claim that furnishing collaborative content without examining it for
privilege creates the risk that privileged material will change hands.  Yet, rather than review the information and make a judgment about its character, they excise it, sight unseen.  Calling this practice an “industry standard” approach doesn’t make it right.

Documents are increasingly organic and collaborative, serving as vehicles for communications about their development.  Had these communications occurred
outside the document—in e-mail instead of in application metadata—the messages would have been produced or logged by honest, competent counsel.  But let them reside within the document, and they’re kicked to the curb.

Even when embedded communications are produced with images, conversion to imaged formats is a costly source of confusion.  The document must be produced twice: once with tracked changes visible and once without.  Embedded content must be captured to a load file, without any context to give it meaning, Long comments tend to get truncated, and colors greyed out.  Reviewers employing key word searches may get hits on embedded text the reviewer can’t see onscreen.  It can be a real mess.

It’s time to call this quits.  We have to take our evidence as we find it–show and tell.  That means accepting that there’s more to ESI that meets the eye, understanding what’s inside and dealing with it as evidence.