E-Discovery Basics: Production of ESI (Vol. 1, No. 9)

July 11, 2011

This is one in a series of brief introductory guides to practical issues in electronic discovery. To subscribe to future installments of E-Discovery Basics, please click here.  

Production is the next step in the e-discovery life cycle after electronically stored information ("ESI") has been preserved, collected, processed and reviewed. In this installment of E-Discovery Basics, we discuss selecting the form of production and four forms in which ESI may be produced: native, near-native, image (also known as "near-paper"), and paper.

Selecting the Form of Production: Procedural rules in litigation usually provide a protocol for selecting the form of production. For example, the Federal Rules of Civil Procedure require the parties to discuss at an initial discovery planning conference the form or forms in which ESI should be produced. Additionally, they allow a requesting party to specify the form or forms of production in document requests or a subpoena. The rules recognize that different forms of production may be appropriate for different types of ESI, but the responding party need not produce the same ESI in more than one form. If the requesting party fails to request a form of production, or the responding party objects to the form requested, the responding party must state the form or forms it intends to use.

If the parties are unable to reach an agreement, the responding party must produce the ESI either in the form in which it is ordinarily maintained–i.e., in its "native" format–or in a reasonably usable form. Although the responding party is not required to produce in native format, the option to produce in a reasonably usable form generally does not mean that the responding party may convert ESI to a form that makes it difficult or impossible for the requesting party to use the information efficiently in the litigation. For example, if the responding party ordinarily maintains the ESI in a searchable form, it may be inappropriate to produce it in a form that removes or significantly degrades this feature.

Many state rules have protocols similar to those of the Federal Rules of Civil Procedure. And governmental agencies usually will specify a preferred production format in subpoenas or informal requests for information.

The Role of Metadata: One of the principal differences among the common forms of production lies in the metadata they include.

Metadata consists of information that is usually not visible to the user and reflects characteristics of the ESI (such as origin, usage, structure, and alteration). Systems and applications automatically generate most metadata. For example, metadata can describe how, when, and by whom ESI was created, accessed, and modified. Some metadata, such as file dates and sizes, can easily be seen by users. Other metadata is hidden or embedded and generally unavailable to computer users. There can be hundreds or even thousands of fields of metadata associated with an individual file. In fact, some ESI may be comprised more of metadata than data. Because much of the metadata will be neither relevant nor necessary for searching, sorting and analyzing the ESI, it may only be necessary to produce certain metadata fields.

Native format usually includes all metadata associated with a document. Near-native includes some or all metadata. Image (near-paper) format includes no metadata in the images themselves, but "load files" containing certain fields of metadata necessary to make the ESI reasonably usable (e.g., searchable) are usually included in the production. Paper productions do not include any metadata.

Native Format: A native production consists of responsive ESI in the form that it is ordinarily maintained on the producing party’s systems, and it usually includes the metadata associated with the documents. The benefits of native production include likely savings in costs and time compared to other formats, which require conversion of the ESI into images and associated load files, and avoiding later disputes over whether the format selected was reasonably usable. Many review tools allow for common native file types to be viewed on the review platform, making it unnecessary to manually open each file in the associated application. Some files cannot be produced in native format because they require conversion to be reviewable and thus must be produced in either near-native or near-paper format (e.g., certain email formats and databases).

Potential drawbacks of a native production include the inability to number individual pages (i.e., "Bates stamp") for document control, to redact for privilege or other reasons, or to label the documents as confidential. The producing party cannot control or limit the metadata produced, which can be a significant reason why producing parties may decline to produce in native format. Also, ESI produced in native format may be difficult or impossible to review where reviewing it would require proprietary or legacy software. Some of these drawbacks can be mitigated in whole or in part. For example, document identifying numbers and confidential designations can be included in file names, a partial solution that still does not allow for such labeling on a page-by-page basis (which often is a strong preference to ensure proper identification and control of documents). Documents needing redaction can be produced in an image-based format. And ESI created in proprietary or legacy systems may be converted into alternative, near-native forms.

Near-Native Format: Some files, including most email and large databases, cannot be reviewed for production or produced without some form of conversion. Emails often are saved in a single text file or database rather than in separate files for each email. Databases and data compilations can consist of massive amounts of undifferentiated tables of data, with hundreds of tables and thousands of data fields in some enterprise systems, and may require proprietary software to review in their original form. Consequently, email and large databases and data compilations are generally not produced in true native format.

In near-native format, files are extracted or converted into another searchable format. For example, emails may be converted to .htm, .msg, or .rtf files. Databases may be converted to .txt or .csv files, or exported to MS Excel or MS Access for production. As a result, the original format is altered and the ESI is no longer in native format. The near-native file format will usually include some or all of the ESI’s original metadata.

The advantages and disadvantages of near-native format generally mirror those of native format. Although converting files from native to near-native format generates some costs, near-native conversion usually is less costly and time intensive compared with the total image conversion required in an image production. It is also readily searchable. Certain types of ESI, however, are more likely in near-native form to be in a format conducive for review than if produced in native form. Near-native format also can provide the producing party more control over the metadata it produces than with native format. As with native format, however, it is not possible to individually number pages, redact or mark material as confidential in a near-native production.

Image (Near-Paper) Format: ESI can also be produced in an image, or near-paper, format. The ESI is converted (usually to .tiff or .pdf files) so that a "picture" is taken of the ESI as it might exist if it were in paper format or viewed on-screen. Hard copy documents also can be scanned and produced in an image format. The images themselves often cannot be searched or indexed, but they are usually produced with accompanying extracted text and metadata in load files so that they may be viewable and searchable in a review tool. Optical character recognition ("OCR") may be used to render scanned hard copy documents searchable, but OCR can yield imperfect results.

The advantages of an image production include the ability to number, redact and mark documents as confidential, as well as the ability to control the metadata fields that are produced. Imaged files also carry less risk of accidental alteration because they are non-editable. The disadvantages include the cost and time involved in converting the ESI to images, and potential later challenges regarding the sufficiency of the metadata and searchability (though such challenges can be averted through a prior agreement on the metadata fields and extracted text to be provided). Additionally, certain file types–such as spreadsheets and certain databases–may not be conducive to production in image format.

Paper Format: Paper (or "hard copy") documents are physical documents copied from other physical documents or printed from ESI. They share some of the control advantages of near-paper files (e.g., numbering, redaction, and labeling). But a paper production does not include any metadata and cannot be searched or indexed electronically. There may be some instances when printed hard copies may be reasonably usable for purposes of a particular case–e.g., a small production where searchability and indexing are not important and metadata is not needed. Often, however, reduction of ESI to hard copy form with no searchable text or metadata will not meet the requirement of producing it in a reasonably usable form.

Because different forms of production are often appropriate for different types of ESI, it is common for document productions to involve a combination of forms. One common combination, for example, is for most files to be converted to image format, with the exception of files like MS Excel, which may not be as usable in image format, and therefore are produced in native or near-native format. Another common combination is for email, databases and proprietary files to be produced in a near-native format; for attachments and loose files to be produced in native format; and for files requiring redaction to be produced in image format.

In our next installment of E-Discovery Basics, we will discuss the admissibility of ESI at trial and in other proceedings.

Other installments in our E-Discovery Basics series are available here.

If you would like to subscribe to future installments of E-Discovery Basics, please click here.

Materials regarding production protocols and format of production are available on the EDRM website, http://www.edrm.net, and were relied upon as a source for the discussion above. 

Gibson, Dunn & Crutcher LLP 

Lawyers in Gibson Dunn’s Electronic Discovery and Information Law Practice Group can assist in implementing defensible and proportionate approaches at all stages of the e-discovery process. For further information, please contact the Gibson Dunn lawyer with whom you work or any of the following Chairs of the Electronic Discovery and Information Law Practice Group:

Gareth T. Evans – Practice Co-Chair, Los Angeles/Orange County (213-229-7734, [email protected])
Jennifer H. Rearden – Practice Co-Chair, New York (212-351-4057, [email protected])
G. Charles Nierlich – Practice Co-Chair, San Francisco (415-393-8239, [email protected])
Farrah L. Pepper – Practice Vice-Chair, New York (212-351-2426, [email protected])

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