This article originally appeared in Law Technology Today published by the ABA on Oct. 29, 2015. I co-authored this piece with Joel Henry, PhD, JD.
E-discovery can be a complicated process starting with the question of what format data must be in when exchanged. The most common, and least useful, way that data changes hands continues to be either in paper form, or scanned copies of that paper. Neither of these forms permits even a simple keyword search beyond the human “eye scan” of words on pages or a computer screen. In today’s world of technology, the choices in data production range from native, near-native, near-paper, or paper formats. But what do these all mean and what option should you choose?
The aforementioned formats each have benefits and drawbacks. Before explaining why native and near-native formats will become your new best friend, a quick understanding of each is necessary.
Native production is the format used by the application that created the document. For instance, when you create a document in Microsoft’s PowerPoint, the native format is a PPTX file; creating a document in Microsoft Word creates a DOCX file, etc. Production in this format requires no conversion by the producing party, thus saving money in the short run. The receiving party may convert the format, if time, money, and technology make such a conversion advantageous.
The near-native format produces the data with as much original information as possible in a different, often more easily accessible file type. This can result in a partial loss of metadata (the “data about data”), but often the information counsel needs will still be available. For instance, Microsoft Exchange e-mails are not natively produced in the commonly referred to PST format; however it is a format that Exchange can export the true native format to, providing entirely all of the information as is contained in the true native format.
Near-paper and paper formats essentially limit production to the data that a user would see if they printed what they were viewing. The only difference is that near-paper produces this data in a scanned electronic format (i.e. TIFF, JPG, PDF), often without any ability to search for text within the document because the document has become, in essence, a photograph. On the other hand, paper production is a printout of that visual representation, likely delivered to your office in multiple boxes for you to sift through without the aid of technology.
The Case for Native Formats
While native format production may concern some lawyers for providing too much information, it can often be the only way to provide the scope of information discovery production requires. Most don’t realize that items like spreadsheets have a lot of data behind what is presented to the user (i.e. the users sees the result of a calculation but not the formula used to calculate this result). In a business or financial case, the formulas that create values in the spreadsheet often will be more critical to the case than the calculated results presented to the user on the screen. Neglecting to provide this data can often land you with costly reproduction of the native data, or even sanctions by the court.
In some instances, near-native format production yields similar results to native format, and will be preferred. The most notable is e-mail production from Microsoft Exchange platforms. Email exported to a PST file produces a near-native format; however is commonly referred to as native by attorneys. For reviewers of data, the ability to analyze a PST is much more efficient and cost-saving than going through thousands of e-mails in TIFF or PDF form. Given thousands of e-mails containing multiple responses flow between email users each day, working with a PST file affords both sides the ability to understand email threads and purge duplicate messages during review saving time and money. Additionally, PSTs, like many near-native formats, still allow the user to examine most, if not all, of the increasingly important metadata.
Native format allows electronic evidence to be preserved without degradation. However, when reviewing in the native format, you should be careful to only review copies of the original files. This is especially important for the producing party, since altering the native file, even accidentally, can alter both data and metadata resulting in inadvertent evidence tampering. An easy way to avoid this pitfall is to review your data with e-discovery software tailored for that purpose. The top vendors of this type of software ensure that users are only working with copies of data when performing functions like marking, reviewing, and redacting. Additionally, these powerful tools allow reviewers to search through both the presented data and the metadata; preventing the producing party from inadvertent disclosure of privileged or confidential information and making it efficient for the receiving party to search through the evidence.
Attorneys continue to provide electronic data in either paper or near-paper forms because that is how it was always done. Yet the benefits of native and near-native production often outweigh the costs. Authenticating evidence is easier, costly conversions to TIFF and PDF files are avoided, evidence manipulation through tampering decreases, and review by both parties becomes more efficient. Most e-discovery software also allows for redaction and Bates stamping from the native dataset for an easy transition to the courtroom environment. In the end, native formats provide a greater benefit to both producing and receiving parties and will quickly become your best friend, no matter what side of the aisle you sit.