Areas of High Risk for Counsel when Producing ESI

By Steven Bailey, Senior Case Manager, Planet Data

ESI, electronically stored information, eDiscoveryIn the pre e-discovery age, there was only one aspect to a document production – the Bates stamped paper documents. Today, the majority of all discoverable information is created and stored electronically. Document productions often include a variety of electronically stored information (“ESI”). This piece addresses the areas of high risk for counsel and aims to improve awareness of the issues when a matter involves the production of ESI. Understanding the benefits and challenges of available production formats will allow counsel to create an e-discovery plan to best maximize case strategy and effectively manage costs.

The Federal rules require lawyers on both sides to address all discovery issues at the outset of the litigation. Given the many variables and factors involved in producing ESI, counsel should involve technical team members as early as possible to consider what formats of production are available and what can be generated. It is also important to understand the capacity of the litigation support department or vendor who will process and or produce the data. Knowing “turn-around” times will go a long way to ensure deadlines are met and enough lead time is factored in for proper quality control checks and to accommodate any last minute changes to the production set.

If ESI is requested in a different format than what the party expected, the parties should discuss what is feasible in terms of expense and logistics and who will be bear the extra costs. Where the ESI discovery is unknown or to be produced on a rolling basis, an on-going discussion between the parties will be necessary. Also, logistically speaking, the determination about production formats should be considered up front, before the data is processed as some processing methods may prevent some production outputs. Having to search through boxes of media to re-process certain file types at production time, for example, results in added time and increased costs.

The production of ESI in the format in which it was originally created is referred to as native production. Native format is commonly used for files not meant to be printed such as Powerpoints, spreadsheets, small databases, and audio and movie files. Data contained in these applications works properly when produced natively and it also may be the only way to produce the files for the other side to review. Some attorneys prefer to produce in native format to save the time and expense of converting to static image files like TIFF or PDF. In other cases, tight discovery deadlines leave attorneys no other choice but to produce the documents natively.

While reviewing and producing documents in native format can save time and money, native productions often present case management challenges and risks that may outweigh the benefits. Some key risk factors counsel should consider: Native productions typically do not include metadata or extracted text and as a result cannot be searched or indexed by the receiving party. Additionally, redacting sensitive or privileged information is not possible on native files. The producing party also cannot control or restrict the metadata produced, such as hidden comments, track changes or speaker notes. Lawyers don’t always realize that they are granting full access to all of the document metadata when they produce ESI in native format.

Native format productions can also adversely affect case management and make it difficult to manage evidence during discovery and at trial. Native files cannot be endorsed with a Bates number or confidentiality designation. Consequently, documents used at depositions will not have a shared, page-level Bates number and highly sensitive materials could lack the necessary confidentiality designations. Also, data produced with non-standard or proprietary software may not be able to be opened and viewed at all.

Certain types of files like most e-mail and databases cannot be reviewed or produced in true native format without first being converted. The process of converting ESI to a non-editable digital file is known as rendering. Rendering of the ESI is necessary in order for the parties to redact privileged information. Also, if stamping or designations are required the native files have to first be converted to electronic image format.

Counsel should be aware of the common issues and risks that exist with ESI converted to image format. Most importantly is the risk of altering or losing data during the conversion process. For certain types of ESI the images generated may not accurately represent the native. Excel Files, for example, often contain hidden cells, rows, worksheets, columns, and formulas that are not displayed on the image. Similarly, Word documents often do not display comments and track changes. PowerPoint files generally do not print speaker notes by default and animations do not display properly. For e-mail, blind copies and the date read are not available by default. Embedded data not appearing in TIFF view is likely to be less guarded, and therefore, more revealing and potentially harmful. A sound workflow plan will ensure that these types of ESI are also reviewed in native format to avoid producing embedded data not reviewed.

In determining the form of production, parties should also consider whether they want to request the production of searchable metadata and, if so, what fields. There can be hundreds of metadata fields associated with a single file. The parties should clearly state in writing the metadata requested any known problems or gaps in the metadata received from third parties. Aside from searchable text, metadata should include information about relationships between documents, e.g., parent-child relationships. Most typically, metadata is produced in a standard delimited load file for loading into most litigation support software platforms. Clear and concise communication regarding the load file format will save time and money for each party producing and receiving data. The more common load files include .dii (Summation), lfp (IPRO), and .opt (Concordance/Option)

Given the pros and cons of each production format different forms are often necessary to accommodate different types of ESI. In practice, it is common for a production to involve a combination of images, natives, extracted text, OCR, native files and metadata. Parties often will agree to produce certain ESI in native format along with image files such as TIFFs or .PDFs. Word documents are often produced as TIFF images and Excel and PowerPoints as natives. Files requiring redaction are produced as images while similar non-redacted file types are often produced as natives.

It is important to understand how redacted information is impacted by production format. Special attention should be paid to redacted materials when producing. Redacted images will require extra time to process. The images are OCR’d after the redactions are burned and the re-OCR’d text is substituted for the original text. When producing extracted text and metadata for redacted documents it is necessary to remove the original information from all parts of the production. Quality control will verify that redacted information is properly withheld on the image and from the extracted text and fielded metadata.

A proper document management plan will also assist in mitigating the risks associated with producing ESI. Thorough documentation of the process of review and conversion of the native files to images format should be in place. Documentation defining the review team’s redaction process is also key to ensure that everything produced was properly reviewed. Counsel should also document its privilege searches and verify the accuracy at the beginning and at the end of the production. Attorneys sometimes make coding changes after the documents have been added to the production queue.

Quality control review of the results will also help reduce the potential risks substantially. Each production should be thoroughly checked for quality assurance by the producing party prior to release. The scope and specifications of the production should be reviewed for both technical and legal conformity.

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