The Form of Production: Yes, the Issue Still Arises Today

Nelson Mullins Riley & Scarborough LLP

Nelson Mullins Riley & Scarborough LLP

While the form of production has seen change over the years, the issue still finds its way to the bench.  In the case of Baker v. Santa Clara Univ., 2018 BL 275295 (N.D. Cal. July 31, 2018), the Plaintiff requested Santa Clara University (“SCU”) to natively re-produce all responsive documents.  Last week, Magistrate Judge Demarchi denied Plaintiff’s request to re-produce the responsive e-mails and attachments in native format after the Plaintiff argued that native format would aid in determining whether SCU failed to produce other responsive documents that should have been produced.

Separately, I recently saw an all-native production request and coupled with the above Order, thought it may be appropriate to re-visit the current trends in e-discovery production formats and the reasons surrounding those current trends.  

One of the primary reasons we produce in Tagged Image File Format (“TIFF”) is admittedly because that is the format in which we’ve historically produced documents back in the paper days.  We can all admit that we are creatures of habit until well we shouldn’t be anymore.  While we aren’t in the paper days anymore, Toto, there are still benefits to a TIFF production for certain file types. 

An important benefit to TIFF format is the post-production accessibility of the file.  With a TIFF production, the receiving party need not worry whether or not they have the same software or application as a specific ESI form of production.  If a unique file format is produced natively then the receiving party must also have that specific software in order to access the native file.  This then promotes uniformity in the production as a single production could include multiple email types, engineering drawings, text messages, spreadsheets, database exports and so on.  While it may be tempting to request a native file production, it may very well end up not being “reasonably usable.”

Another concern of a native production, or stated differently a benefit of a TIFF production, relates to emails.  If an email is produced natively then the receiving party could theoretically reply to that email in kind.  

A third benefit of the TIFF production includes the near native format and the associated metadata.  To briefly explain near native files: A native file is the default file format that an application saves the file in upon initial creation and save while a near native file was converted from the original application format.  For example, if I create and save a Microsoft Word file (.doc file extension) then save as to a .pdf file extension, the Adobe Acrobat file is a near native file.  Another prime example is with e-mails.  We typically collect a .pst file as opposed to each individual email and then convert it to many .msg, .html or .eml files and these individual e-mail files are near native files.  With these near native productions, the metadata could very well be changed from the original application.  The date created could change to the date exported or otherwise change from the original date, such as that Word file that was saved in the .pdf format.

Branding is another concern with a native production as the branding would not be rendered on the document when presented during depositions or even if your case goes to trial.  Rather, the “branding” information for the document would need to be included in the corresponding .dat file as part of the metadata though it would not appear on the face of the document if and when printed.

While we may consider or see a native production request come across our desk, these are just a few reasons to continue the TIFF production even if it seems a bit old school.  And, for the receiving party, the TIFF production, along with the corresponding .dat file, can still be thoroughly analyzed for substantive content, case strategy, and whether additional data may be missing from the initial production.  Perhaps these techniques may appear in a later blog post.  Stay tuned.

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Nelson Mullins Riley & Scarborough LLP

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