E-Discovery & Legal Ethics – What to Do About It Part 7: Producing ESI
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.
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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:
- initially assess e-discovery needs and issues, if any, and analyze and understand a client’s electronically stored information (ESI) systems and storage;
- direct the implementation of appropriate ESI preservation procedures and advise the client on available options for collection and preservation of ESI;
- identify custodians of potentially relevant ESI;
- engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan;
- collect responsive ESI in a manner that preserves the integrity of that ESI
- perform data searches; and
- produce responsive non-privileged ESI in a recognized and appropriate manner.
This article addresses e-discovery production formats.
Five General Production Formats
In general, there are five formats in which ESI is produced in discovery:
- Native
- Near-Native
- Image
- Paper
- 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.
