The sophomoric title of this post strives to underscore the trial bar’s proclivity to self-abuse when it comes to the petulant insistence on Bates numbers embossed on each “page” of ESI produced in discovery. My previous post on native production began by referencing a famous psychology experiment. Comments to that post concerning Bates numbers prompted my recall of another famous psychology experiment, where McGill University’s James Olds and Peter Milner set up an apparatus electronically stimulating the pleasure (i.e., orgasm) center of rats’ brains. Given control of their stimulus, the rats began virtually tossing one off about 2,000 times an hour, ignoring food, water and hockey. This is why men must rest between orgasms; else, we would die of dehydration in adolescence.
The first comment on Bates numbers came from Mike McBride, who is an accomplished blogger and a veteran of years in IT and litigation support. Mike wrote:
“One of the real challenges in moving firms to native production is the Bates Label, so I’ll be interested in seeing how you deal with that. Discussions I’ve had about native production typically start and end with “how would I keep track of which document is which if it’s not labeled?” Unfortunately, that question exposes the larger issue behind it, namely that attorneys are still printing their documents and reviewing them in that format, even when they have a sophisticated tool available to them to do review. When you print out a copy of a document, removing all of the available metadata, the label becomes the only way to truly tie it back to its electronic version. Until we get them to stop printing, I’m afraid native production is still a step too far.”
Mike wisely notes that the TIFF wars often rage over Bates labels. Lawyers adore Bates labels. It comforts us to shrink all those documents we reluctantly hand over to our adversaries and emboss a number and cautionary message in their new margins. “ABC00123-PRODUCED SUBJECT TO PROTECTIVE ORDER,” they shout, but mean: “DON’T EVEN THINK about giving this to another plaintiffs’ lawyer because we know you greedy scum would violate the Court’s order in a New York minute but for this warning.”
Lawyers who revere Bates labelling as a citadel against violation of protective orders ignore the accomplishments of two inventors: Betty Nesmith Graham and Chester Carlson.
Late in the 1950’s, Dallas secretary, Bette Nesmith Graham, invented Liquid Paper in her kitchen blender. (She also ‘invented’ son Mike Nesmith, who would go on to fame as one of the four Monkees in the invented 1960s TV rock band of the same name). Were one so inclined, correction fluids like Liquid Paper make it child’s play to remove or alter Bates numbers.
Chester Carlson invented photocopiers (i.e., Xerox machines), so the magic that enables producing parties to shrink documents and emboss Bates labels makes it simple to mask those Bates labels and resize document to their true dimensions.
And don’t get me started on Photoshop and other image editing applications!
In short, Bates labels are an illusory safeguard against malfeasance—and have been since Eisenhower was President and Don and Betty Draper were a couple. Lawyers respect court orders because we value our licenses and reputations, not because some damned fool embosses a cautionary legend.
So, getting back to Mike’s comment that lawyers want Bates numbers to relate printouts to native source files, it couldn’t be simpler: you produce in native forms and simply emboss Bates numbers when the evidence is downgraded to paper or TIFF for use in proceedings. That is, you add Bates numbers only where and when they’re worth the trouble.
Here’s one way to skin that cat, excerpted from the exemplar production protocol made an appendix to my paper, Beyond Data About Data: The Litigator’s Guide to Metadata):
Unique Production Identifier (UPI)
a. Other than paper originals, images of paper documents and redacted ESI, no ESI produced in discovery need be converted to a paginated format nor embossed with a Bates number.
b. Each item of ESI (e.g., native file, document image or e-mail message) shall be identified by naming the item to correspond to a Unique Production Identifier according to the following protocol:
i. The first four (4) characters of the filename will reflect a unique alphanumeric designation identifying the party making production;
ii. The next nine (9) characters will be a unique, sequential numeric value assigned to the item by the producing party. This value shall be padded with leading zeroes as needed to preserve its length;
iii. The final five (5) characters are reserved to a sequence beginning with a dash (-) followed by a four digit number reflecting pagination of the item when printed to paper or embossed when converted to an image format for use in proceedings or when attached as exhibits to pleadings.
iv. By way of example, a Microsoft Word document produced by Acme in its native format might be named: ACME000000123.doc. Were the document printed out for use in deposition, page six of the printed item must be embossed with the unique identifier ACME000000123-0006.
The original name of the file is furnished in a load file, along with other relevant system metadata.
The logic behind this is simple. Parties tend to produce many more items in discovery than are used in proceedings (when the page-by-page identification function of Bates numbers is advantageous). So, the party who changes the form of evidence is obliged to tie the altered form to the original and append the pagination.
Those who object that this renaming is burdensome or expensive haven’t done their homework. Filenames have been used for decades as a means to assign Bates numbers. It’s standard operating procedure in TIFF and load file productions. As to cost, good tools to do the job cost nothing. An excellent free file renaming tool is Bulk Rename Utility, available at http://www.bulkrenameutility.co.uk. It allows you to add custom incrementing numbers and a protective legend like “Subject to Protective Order” in the name. And no, renaming a file this way does not alter its content, hash value or last modified date.
I make that last point because I lately saw an affidavit from a Director at a prominent national e-discovery consultancy where the muckety-muck swore that “adding bates number [sic] to the file name would alter the metadata file name, date and time last edited and other fields.”
Renaming a file absolutely does not alter its “date and time last edited.” To do so, you must open the file and save it, neither action being necessary to rename a file. Test it, if you have doubts.
Of course, the same affiant swore that an MD5 hash algorithm “counts all of the bits and bytes of an electronic file. The total number of bits and bytes is referred to the hash value.” [Sic]…and makes me sick. Like anyone who understands this stuff reasonably well, I think of the total number of bits and bytes as being the file’s size, not its MD5 hash.
Shall we chalk up this false swearing to “verbal masturbation,” in keeping with our theme? Fine, but beware. This sort of “say-it-irrespective-of-the-truth” strategy is straight out of the Case against Native playbook. Going native takes bread from the mouths of many riding the “TIFF It” gravy train. They won’t go down easy, and they don’t fight clean.
So, get hold of yourself, and master Bates numbers to insure litigants get all the satisfaction that comes from native production. If the sexually-tinged joshing in this post offends, please know that I’ve only ribbed for your pleasure.
Lael Andara said:
Justice FRANKFURTER also emphasized the public interest in avoiding needless friction that may lead to premature adjudication.
Railroad Com. of Texas v. Pullman Co., 312 U.S. 496 (1941)
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craigball said:
We Balls make it a point to support the Frankfurters.
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Ralph Losey said:
As you know I proposed replacing Bates numbers with truncated hash numbers years ago. HASH: The New Bates Stamp, 12 Journal of Technology Law & Policy 1 (June 2007). The proposal has gone nowhere. Even I dont use it. Ah well, we work for the future.
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craigball said:
Indeed you did, and while I’m not surprised that the use of the truncated hash didn’t catch fire, your article went a long way in helping put the all-important notion of hashing on many lawyers’ radar. That’s a very good thing.
A truncated hash as a component of a unique identifier serves the salutary purpose of affording a recipient a high confidence that the copy they are using is unaltered by evil or error; but, it does nothing to distinguish two identical documents from different sources/custodians or alone denote a sequence or relation among multiple documents.
As you know I was an early proponent of the hash as a sort of new Bates number, too. The hash has its place as a crucial technology here; but, hash values alone won’t uncouple our colleagues’ stubborn attachment to Bates numbers.
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Martin Felsky said:
This is similar to protocols proposed and in use in Canadian jurisdictions for a few years: “Where copies of EI have been rendered in single-page TIFF format the Document ID is the same format as for scanned Documents. Where copies of EI have been rendered in native or near-native format and are not paginated, the Document ID shall be a unique sequential number representing each record, i.e. AAA00000001.” It is simple and it works.
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Jeff said:
Hi Craig,
What about the point made recently to me when trying to produce documents natively that based on the different parties potentially different “rendering tools” used when printing to tiffs (especially with emails) the same document can vary in page length and therefore have different page numbers depending on who imaged the document. Given the size and number of attys involved in the case it would not be feasible to tiff ahead of time and share with all parties in advance.
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craigball said:
So, the producing party has the time and budget to image EVERYTHING at enormous cost, where only a handful of material will be used in proceedings; but doesn’t have the time to image a small subset of the collection for the same purpose at a relevant time and with significant savings in cost and fewer errors in production?? I reject the premise. When you print (to paper or TIFF), you are unilaterally altering the form of the original evidence (not unlike a transcription of an audio recording is an alteration of the original format). Where in the law do you find the right to do that? Yes, the printed version could be a little different, if different means to effect the transformation are used. If that’s a serious concern, the parties could as easily use the first-created and -promulgated version for ready reference and consistency, in much the same manner as good advocates consitently reference exhibits by the same exhibit numbers to minimize confusion.
The evidence is the native version, not the unilaterally degraded version! If a party seeks to unilaterally generate and promulgate a degraded version, then it’s their burden to take reasonable steps to keep everyone on the same page, literally and figuratively. The protocols I’ve promulgated all address that concern handily.
I understand that the producing parties want to supply renderings and not more complete, economical and utile forms. They also want to define their renderings as the definitive renderings, typically on the theory that the receiving parties will change the evidence and somehow gain an unfair advantage using changed evidence to confuse the court and witnesses. HOGWASH!! The costs and burdens of TIFF plus are real and immediate. The threat of a variant page number on printing is speculative and nothing new. Too, it’s never really caused anything remotely like the needless costs and burdens of TIFF Plus.
One more thing: E-mail isn’t paged. The producing party artificially imposes a paged format on something that wasn’t meant to be paged and then bitches because everyone won’t pay a huge price to accept their arbitrary paging? I say, “Tough.” I’m entitled to the evidence, not an opponent’s vandalized version that costs me a whole lot more to ingest, process and host.
I don’t mean to be rude while I am dismissive; but, I do passionately dismiss the objection. Until lawyers look closely at how much more TIFF plus costs the party who receives it to ingest, process and host, they don’t have the full picture. To that end (and I have no right at all to ask this of you), please try your hand at the exercise found here: http://craigball.com/Exercise-Forms_of_Production_and_Cost.pdf If you do it and feel no differently, I’d like to hear why, and I assure you I will listen with an open mind.
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Jeff said:
Thanks for the response, Craig. Perhaps I was unclear but we are the producing party and we are trying to produce natively. They’ve asked for everything tiffed and are apparently happy to obtain dumbed-down evidence. We made the arguments you’ve already discussed. But because they’ve asked for everything tiffed they of course are not moved by the expense of that exercise since they claim it ensures fidelity in page numbering. Again, the big hurdle to accepting the native production on that score from their point of view as I stated is that on a big case you are going to have people rendering from native to tiff using different “rendering tools” and at various times, often last minute and on the fly, such as the evening before depos, hearings, etc.- all raising the potential for inconsistent pagination because there is no realistic way of tiffing this stuff far enough in advance, they argue, to makes sure only one party is tiffing that particular document. Moreover, they say it would be an additional and unworkable burden to be sending around tiffed versions of bits and pieces of the production every time one party images documents. Although this is probably a bit overstated, and I am on board with just about everything you’ve said, I do think that having the same documents with different page numbers showing up in a hearing or trial would be a huge problem, even if it occurs even rarely. In other words, you are preaching to the choir here but the choir would like some more ammunition.
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craigball said:
My comment here assumes that the Producing Party has done what they must to protect their right to supply forms of production that deviate from the forms sought by the Requesting Party (e.g., timely objection and notice of alternative forms of production).
If the Requesting Party wants to take the native production supplied and convert it to TIFF Plus at their own expense, they may do so. If a proper protocol is in place, they would be obliged to emboss items with BOTH the identifier of the native file AND the page number generated by the TIFFing when they TIFFed items. If the Requesting Party then wishes to supply a copy of the TIFFed set to all other parties for convenience in making reference, the Requesting Party may do so, and the parties may elect to settle on those numbers for use as common references in proceedings.
Slightly different page numbers sound like a bigger deal than they really are. In the rare instances where it occurs, you simply use one version by agreement. Really, how hard can that be when we realize that it saves a LOT of real money? If it happens once, you address the issue and move on. Again, this is not a new issue. Litigants often had the same material in their productions and assigned different Bates numbers to them. We muddled through. Here, the correct reference will be immediately adjacent in the collection. No harm, no foul.
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