As the curtain comes down on 2013, I’m reflecting on where the weeks went. This was the year of fights about forms; months spent endeavoring to persuade courts, opponents (and even my clients) that lawyers and judges have been peering into the wrong end of the telescope when it comes to forms of production. We must stop focusing on the feeble forms lawyers use for review, and concentrate on the robust forms that parties use for everything else.
In discovery and disclosure we seek information from parties and third-parties. We want the data used and created by, for and about parties and third-parties relating to the actions they took or didn’t take. We don’t pursue discovery/disclosure against the lawyers in the case. If we tried, our efforts would be confounded by claims of attorney-client privilege and attorney work product. Apart from pro se lawyers with fools for clients, attorneys aren’t parties, and attorneys aren’t witnesses. The forms your opposing counsel uses for review shouldn’t matter. Discovery and disclosure is party-centric, not attorney-centric.
Ask parties about the forms of ESI they use daily and it’s doubtful you’ll hear a peep about TIFF images or load files. Parties don’t use that junk; only Luddite lawyers do. Clients use spreadsheet programs, word processors, mail and messaging applications and databases, to name a few. When they create, communicate and collaborate, they do it using forms geared to native applications with file extensions like .XLSX, .DOCX, .PPTX, .MSG, etc. They choose and use functional and complete native and near-native forms. Those are the forms witnesses consult to reconstruct events and refresh their memories. Those are the forms witnesses recognize at deposition and in trial.
If you had to testify about something that happened to you two years ago, what are the chances you’d turn to a TIFF image and load file to refresh your memory? What are the chances you were using TIFF and load files to hold your data that day?
The reason we spend so much to dumb down evidence into images and load files is because lawyers and the tools they use in e-discovery are a generation behind the rest of the wired world. TIFF production seems normal in litigation in the same way that 1950s-era DeSoto and Packard automobiles seem normal in Havana. Classic cars are wonderful until you start to miss air conditioning, power windows, satellite radio, GPS, air bags, keyless entry and fuel efficiency. Those who argue that “TIFF gets you where you’re going” care too little for what’s missing and overlook that the TIFF production jalopy is held together by spit and baling wire. TIFF production is printing everything out. There are compelling reasons we don’t do that anymore.
Too often, e-discovery is a bait and switch con game: We request the parties’ modern data, but receive the lawyers’ dilapidated junk. Once that inequity dawns on everyone, perhaps we will bid goodbye to wasting millions on senseless downgrading of ESI and ring in a new era of hands-on analytics.
2013 was also the year my clients started to “get it” in terms of the big benefits and lower cost of native and near-native productions. Today, a client–a big time plaintiffs’ lawyer—called pleased and amazed at the ease with which he now can use what he gets in discovery. All I could say was, “I know. I KNOW!” Awakened to all he’d been missing, my client pledged to never again let an opponent foist TIFF or PDF images on him.
Getting clients to reap the benefits of native production entails turning not one, but two battleships: You must persuade clients to acquire tools that will allow them to manage native forms, and you must persuade or compel opponents to produce in native and near-native forms. One or the other alone won’t wash, and it’s not easy to get both. But, when you receive that enthusiastic call from the client wondering why he’d ever done things any other way and marveling at the better, faster and cheaper of native production, you’ll know the game was worth the candle.
If you’re a lawyer pondering New Year’s resolutions for 2014, consider resolving to acquire tools that will allow you to deal with native data, and fight for the parties’ data, not their lawyers’ leavings.