choirI did an ILTA webcast this morning called “Going Native.” Steven Clark ably moderated the panel including Denise Talbert and Maureen Holland.  D4 sponsored.  Going Native did not mean we spoke in loincloths (although I can really only account for my own attire).  We addressed the pros and cons of producing ESI in native and near native forms versus conversion from native forms to TIFF images and load files.  I expected agressive pushback as I sang the praises (Just! Speedy! Inexpensive!) of native productions; but, steeled for debate, I was instead treated to fine dialog.  No one trotted out the usual hackneyed objections to native productions.  Advantages and disadvantages were thoughtfully addressed and everyone proved open to flexibility in forms of productions when to do so serves to meet a genuine need or solve a problem.

When polled, roughly half of those attending stated that they weren’t making production in native and near-native forms simply because the requesting parties hadn’t sought same.  Around 16% said they resisted native production out of concern that native productions were harder to track.  My sense is that the attendees were open–even eager–to embrace native production.  I wasn’t surprised by this because there are few audiences for e-discovery education as sophisticated and rational as ILTA audiences.  ILTA members tend to be hands on with ESI, affording them a better appreciation of the downsides of image and load file productions.  They’re typically the ones tasked with cleaning up the messes caused by malformed load files and TIFF creation errors.

That 16% missing out on the advantages of native productions out of concern that native files aren’t Bates stamped on each page distresses me because I’m sure they correspond to a much larger percentage of lawyers who can’t conceive of litigating without Bates numbers (and protective legends) on every page. It seems a lot of people don’t realize that you don’t have to give up Bates numbers and protective legends when you make native productions.  If you approach native productions the right way, the Bates numbers will still be there when you need them.  I’ll explain how that works, but first please indulge me in a little mental exercise.

Imagine that you are the choir director for a big middle school.  You’re going to assemble twelve students to perform for the town’s centennial celebration.  The performers will wear matching choir t-shirts you supply at your cost.  More than 300 students have signed up to audition for the 12 slots.  Will you spend the money and undertake the administrative challenge to buy and fit a t-shirt for every child who auditions, or will you wait and outfit just the twelve performers selected?  When do you buy t-shirts? When do you buy t-shirts

T-shirts are cheap, but you won’t want to take on the expense and effort to outfit hundreds of aspiring performers.  You’ll wait until you’ve picked the twelve you’ll put on stage before you shell out for shirts.

I suggest that this is also how we should sensibly approach Bates numbering native productions.

When do we really want Bates numbers?  Isn’t it when the items produced are going to perform…as exhibits to pleadings, in depositions and on that rare occassion called “trial?”  That’s when being able to identify particular documents for the record and be on the same page matters.  So, my rule is simple: When you produce natively, every file produced carries its unique Bates number in or as its file name (appended, prepended or replacing the original file name altogether).  A load file correlates the source file name to its Bates number.  If you wish, other language (e.g., PRODUCED SUBJECT TO PROTECTIVE ORDER) can also be included in the new file name.  It’s simple.  Really.  Chances are you’re already using Bates numbers as file names in TIFF productions.  We know how to do this easily and at almost no cost.

Now, you secure a court order or agreement requiring any party who prints or images an item produced natively to include the file name and a page number on the face of the printed or imaged document.  This is also child’s play.  MS Word can do it.  Adobe Acrobat can do it.  E-discovery production tools can certainly do it.  It’s essentially what we’ve always done when preparing TIFF productions, except this way is a whole lot cheaper and faster.

The Bates numbers will be consistent, because they’re the file names.  The protective legend will appear on the face of each document for the same reason.  Every page will be paginated for ease in reference.  When you use printed douments in a proceeding, you furnish copies.

Here’s how such a protocol might read:

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.
v. The original name of the file will be furnished in a load file, along with other relevant system metadata as agreed upon by the parties or ordered by the Court.

The most common objection this draws is that someone might distribute a document without a protective legend.  Yes, the world has its share of untrustworthy people.  What would lawyers do were it otherwise?  But, do you really think that the protective legend you place in the margins of a TIFF image serves as genuine deterrent to bad guys?  Let’s recall that, in order to avoid obscuring content, Bates numbers and protective legends are embossed in a gutter of white space created by shrinking the source document on the production page.  The same technology that makes it easy to shrink the content makes it easy to enlarge the content to push the Bates number and protective legend off the page.  Your copier can do it.  Your scanner software can do it, and Adobe Acrobat can do it, too.  So, let’s not kid ourselves.  TIFFing is illusory protection.  Fortunately, the risk of abuse is speculative and remote.  It can be punished.  The punishment in cost and burden that flows from TIFFing for Bates numbers is real and immediate.

Why not stop buying t-shirts for the whole school?