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Electronic Discovery Institute Course - Class 14 -Production Obligations and Formats

Here's a continuation of my postings about the Electronic Discovery Institute's online e-discovery certification program, that you can subscribe to for just $1. I last blogged about this program on November 4, 2017. Go to to sign up for it.

This course is taught by Zviad Guruli, an attorney with Wilmer Hale's Discovery Solutions; Julie Richer, the discovery manager at American Electric Power; and Allen Hsu, the Director of electronic discovery at Fannie Mae.

Guruli started by pointing out that the FRCP 34(b) addresses the format for document production. ESI must be produced in the form in which it is ordinarily maintained or a reasonably usable format, unless otherwise stipulated by the parties. Meeting the production formats may have legal and cost implications.

The production format focuses on how the production will be delivered. The availability of metadata and the abiliy to manipulate that data are the determining factors on the appropriateness of the format.

Richer said that the best way to ensure that a production goes smoothly is to ask a lot of questions at the beginning. According to Guruli, the primary goal was to be produce substantive information and withhold privileged information in a cost effective manner. If a document needs to be redacted, the image format should be considered. The image format also helps protect against the alteration of the document. Native productions are usually more cost effective.

There are four types of production formats:

1. Native production - files are produced in their native applications. The files will be accompanied with all of the available metadata, and the production won't be costly. Excel files are frequently produced in their naive format because they are hard to image correctly.

2. Near native format is often used for email files and large complex database. It is hard to capture dynamic databases at a given point in time.

3. Image format - usually tiff or pdf files. These are accompanied with extracted text. The cost of converting to image format may be high but has been steadily decreasing.

4. Hard copy production.

Hsu noted that image productions allow for Bates numbering and confidentiality captions to be added to each page. It is difficult to redact native files.

Tiff and pdf productions formats are the most static. The images cannot be easily altered. The integrity of native files can be verified with hash values.

Guruli said that nearly all production formats allow for the content to be searchable. Extracted text can be linked with the corresponding image files. Optical character recognition can be used to render text for the scanned hard copy documents.

Richer said that any electronic file can be made searchable. Parties should request that ESI be produced in a searchable format.

Hsu noted the limitations of OCR in dealing with handwritten documents and poor quality scans.

Guruli noted that native productions cannot be redacted, and that it is hard to reference the files on page level. All metadata must be screened before it is released to an opponent. Image productions can be easily redacted, and Bates number for page references, but the conversion process may be costly. Excel files are difficult to convert to the image format.

Hsu said that native productions can be made more quickly and cheaply. A native production may preserve elements such as track changes in a Word document.

Rioher said that native productions may come from systems which an opposing party doesn't have licenses for. Native documents may require the reviewing of hidden information. Excel files can have formulas, comments, and links to other spreadsheets.

The chain of custody process is designed to capture all of the information about handling the data. Hash values are alphanumeric numbers generated through hashing algorithms. The hash value is based on the content of the documents. The values can be used to reduce duplicative documents.

Guruli recommended discussing the production format at least by the time of the parties; first meet and confer. If a party agrees to produce certain information from a database, it needs to ensure that the field is appropriately preserved throughout the production process.

The requesting format should always specify a production format at the beginning of the discovery process.

Guruli said that in-house and external counsel as well as litigation support personnel and outside service providers should be involved in the discussions about the production format.

Rolling productions may help eliminate the need for further productions, if a requesting party finds information in earlier phases that help resolve their claims.

Proprietary database may present special challenges. Guruli advises generating custom reports for such databases. Non-responsive data may be difficult to segregate in proprietary databases. A database may be the back end of an application and may export the data in a text file or spreadsheet that doesn't reflect how the information is displayed in the system. The party's IT department may not be familiar with how to export information from the system.

Hsu noted that generally documents are identified with Bates numbers. Document identification numbers may be used for native files.

Redactions remove information that is confidential, privileged or otherwise restricted. After redactions are applied the documents need to be re-imaged and re-OCRed. Text extracted during the initial processing will need to be replaced. Redactions are used for documents which contain both responsive and non-responsive information.

Load files link production files to information fields associated with the files. The load file is used to import the production ESI into a review system.

Production media is dictated by the size of the produced data. Hard drives are utilized when hundreds of GBs are produced. However productions are also often posted on secure FTP sites, saving the cost of discs and shipping. FTP transfers can pose security problems.

Quality control is necessary to validate the production format. One should be certain that the complete original extracted text is not included for redaction images.

In general, when addressing the format for productions keep these factors in mind:

1. The production specifications.

2. Document the specification and confirm the parties have signed off on them.

3. Production deadlines

4. Quality control procedures should be in place to look for high risk documents.

5. There should also be a focus on cost efficiency and effectiveness.

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