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E-Discovery & Legal Ethics – What to Do About It Part 7: Producing ESI

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This is the last entry in a series of articles examining e-discovery concepts addressed in legal ethics opinions, such as State Bar of California Opinion CAL 2015-193, relating to an attorney’s duty of competence.

 

The California opinion states that attorneys handling matters involving e-discovery must do one of the following: 1) acquire sufficient skill and learning before handing cases involving e-discovery; 2) associate with counsel or consultants familiar with e-discovery; or 3) decline the representation.

 

The opinion also specifically identifies e-discovery tasks about which counsel must become familiar or enlist qualified co-counsel or e-discovery consultants to assist. The tasks, which are discussed in this series of articles, are:

 

 

This article addresses e-discovery production formats.

 

 

 

Five General Production Formats

In general, there are five formats in which ESI is produced in discovery:

 

  1. Native
  2. Near-Native
  3. Image
  4. Paper
  5. Online

 

Each is briefly discussed below.

 

 

Native Productions

A native file is produced in the same format in which it was created.  For instance, the native file format of Microsoft Word is a .doc file. If the file is turned into an image file, such as a .pdf, it is no longer in its native form.

 

Using native productions is often a preferred method because it permits users to take advantage of analytic tools in e-discovery software that may not be available if files are converted into image files. As discussed below, when files are converted to images they lose information such as textual content and metadata. Because this data is lost, also lost is the ability to search for information contained in the document. However, native document productions contain all original file information.

 

Near Native Productions

A near-native file is one converted to a different format, but maintains as much relevant information (metadata) and content from the original file as possible so that it may be searched and viewed in other programs such as e-discovery software.

 

An example of a near-native file is an email contained in a .msg or .eml file. Email messages are generally saved in a database in varying file formats. However, to view messages individually outside of the database, the relevant information (sender, time, recipient, content, etc.) is transferred and converted to file type such as a .msg or .eml file. Near-native productions are also often produced in html or xml format.

 

Image Files

 

An image file is exactly as it sounds–an image of the document.  Often the image files are produced in .pdf (portable document format) or .tiff (tagged image file format), but when files are converted to image files, they may lose information such as textual content and metadata. An example of this is when documents are scanned into image files.

 

Paper Productions

In paper productions, ESI is converted into and produced in paper form.

 

Load Files

Depending on the form in which the ESI and electronic documents are produced and depending on how they will be reviewed, load files may be needed for the production. When ESI is produced with load files, information for each document is contained in multiple files.  As noted, when documents are converted from native form, data may be lost, and also lost is the ability to search for information contained in the document.  So that the documents may be searched after being loaded into e-discovery software, additional “load” files are created containing the metadata and document contents.  The load file then ties all the information together within the software by connecting the image files to the right text and metadata files.

 

Before requesting and producing documents, if you are unfamiliar with production formats, it is a good idea to consult the litigation support department or an e-discovery vendor about production formats. Additionally, it is generally advisable to discuss and agree upon production formats with opposing counsel early in a case.

 

Online Production

Documents produced in an online production are generally shared via e-discovery software or other type of database tool and all interested parties access the documents electronically.

 

For a more detailed analysis of ESI production in electronic discovery, please see EDRM Production Guide.

 

Posted on December 7, 2015 in E-Discovery, Electronically Stored Information (ESI), ESI Production, Ethics and Rules of Professional Conduct

About the Author

Chad Main is an attorney and the founder of Percipient. Prior to founding Percipient, Chad worked as a litigator in Los Angeles and Chicago. He is a member of the Seventh Circuit Electronic Discovery Pilot Program Committee and may be reached at cmain@percipient.co.
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