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Back to Basics: Why request native format documents, metadata, or both, in electronic discovery?

Updated: Jul 6, 2023

Depending on the type of law they practice, many lawyers go their entire careers without ever handling a case involving a large number of documents. They’re accustomed to receiving a few hundred pages of actual paper or PDF images. They know what documents they need, they can prepare the requests in a matter of minutes, and their form banks for discovery requests are extensive. The lawyer can skim through the opposing party’s document production quickly, print a “working copy,” add notes here and there, identify the ones that are important, and put those in a file (either in a file room or on the computer). Simple. Comfortable.

At some point, that’s going to become a problem. What happens when that lawyer:

· Unexpectedly receives 8,000+ pages of PDF images in a case? Or 80,000? Or

· Cannot figure out which attachments belong to which emails (do you trust opposing counsel or the opposing party to assemble them in the correct order)? Or

· Has serious questions about whether an email that was produced is authentic rather than fabricated by another party or third-party? Or

· Cannot readily detect that the document production is missing three days-worth of emails between the opposing party’s CFO and CEO? Or

· Does not have the roughly 20-25 hours to review all these (do the math: if the average document length is 3 pages, reviewing 100-150 documents/hour would require roughly 18-26 hours to review)? Or maybe the client can’t/won’t pay for the time.

Now, before your eyes glaze over and you click away to avoid the techy geek speak, know that this blog is written for the lawyer who has been avoiding discovery that is not strictly paper or plastic. It is time to start learning about how to be more efficient and effective in obtaining and reviewing the discovery needed for the case.

Native format production or receiving metadata along with the PDF images will go a long way toward mitigating the problems listed above. Most rules of civil procedure now contain a general prohibition against making the other party produce documents a second time in a different form. And the requesting attorney is going to have a hard time convincing a judge to compel a second production in a more robust form when the requesting attorney did not specify the optimal form of production the first time. Furthermore, some types of data that lawyers need to request do not really lend themselves to PDF or paper, including spreadsheets, information extracted from databases, and various collaboration tools.

Sometimes you must stop to sharpen the axe. Lawyers who take the time to learn how to request and work with native format documents, metadata, or both, are going to protect themselves and their clients against a multitude of problems and ultimately provide their clients with better representation and advice. Let’s get back to some basics.

What is native format?

Essentially, native format is the file format used by computer devices. Some things are more correctly called “near native,” but we’re not making that distinction for purposes of this discussion. Native format is the spreadsheet file used by Excel, the email in a form used by the email software, etc. Obtaining native format documents provides the requesting attorney with metadata that is used to analyze and sort the document production.

What is metadata?

Metadata is information about a computer file that helps the user or the computer work with that file. The date a file was created, the author, the “to,” “from,” “date,” and “subject” lines of email, whether the email has attachments (and if so, a connector to the correct file), the “track changes” information in a Word document, are all types of metadata.

Why should a lawyer request native format, metadata, or both?

Having native format documents or metadata provides the lawyer with many more options in analyzing a document production. Simply receiving PDF images limits the requesting lawyer to key word searches after optical character recognition is used (software that allows the computer to “see” words in the documents). While useful, keyword searching is limited and finds far fewer relevant documents than most lawyers realize. By contrast, having native format, metadata, or both, allows the requesting attorney to load them into a review platform and then:

· Search by date (such as the date emails were sent), sender, or other criteria

· Thread emails to more quickly find the most recent and most complete chain

· Tag documents based on why they are important or what issue(s) they relate to

· Quickly perform gap analyses

· Definitively identify attachments (or quickly determine that an attachment is missing)

· Identify which document belongs to a hyperlink found in another document (that is, when you click on a link in a document, which document does it take you to)

Suddenly, these searches or actions take seconds or minutes rather than hours. And that is without more advanced tools that use machine learning, AI, and other more advanced analytics.

How do I get native format documents and metadata?

Simple. Ask for them. Most rules of civil procedure allow the requesting party to reasonably specify the form of production. In most circumstances, the producing party will have a difficult time refusing to produce native format if requested. That being said, not all metadata is needed. Different types of computer files often have different metadata fields. Even a 140-character Tweet has dozens of metadata fields, and many file types have over 100. Most metadata fields serve no purpose in civil discovery, so do not ask for “all metadata” in a document request unless it is truly needed. That’s rare. Instead, identify the fields that are needed for a review platform to provide the functionality you need. This is usually about two dozen or so metadata fields and is fairly standardized across most litigation contexts.

What do I do with the document production?

Find a suitable document review platform and upload the document production. This can be far simpler than you may be thinking as you read this. Without naming specific ones, some are simple enough to be what I call “lawyer proof,” where your average lawyer can review documents via the provider’s website. Larger document sets or document sets containing more complex or unusual file types may require a more sophisticated platform. But I have seen several cases where a barely (at best) computer-literate lawyer can take about 30-45 minutes to learn how to navigate the website that accesses the documents and cut through thousands of documents in a few hours instead of several days.

But what about the cost?

Yes, uploading a document production into a review platform and storing it there has a price tag, and the cost of different document review platforms vary all over the map. While that can make choosing one difficult, it also helps lawyers avoid charges for functionality they do not need. A smaller case with common document types can be handled much more cheaply than one with hundreds of thousands or millions of documents.

One of the most important parts about considering the cost is to look beyond the out-of-pocket costs and consider the return on that investment: time saved. In nearly all cases, the most expensive part of discovery is attorney review of documents. The less time spent searching and the fewer documents reviewed, the more money the lawyer ultimately saves the client. This may require spending for a document review platform. But if that spend saves hours (or tens of hours, or hundreds of hours) of attorney time, then the benefit of incurring that cost is easy to see—and that is before discussing how much more effectively the reviewing attorney can analyze the document production with the right review tool. If opposing counsel is using these tools, shouldn’t you, or is that advantage okay?

How do I get started?

Stop and sharpen the axe. Revise your discovery requests to ask for the format that provides the most benefit in analyzing the documents. Learn how to use a document review platform. Yes, it will initially take longer, because you will be slower at first. Yes, it may be frustrating learning how to run a search, tag a document, or sort documents in a certain way. But it does not take long to regain that time, such as being able to find, in minutes, every email a particular witness sent out on a particular date from among thousands of documents when getting ready for a deposition. Once you receive a PDF production set, you have already missed many of the capabilities you need.

Invenius has helped numerous attorneys obtain documents in the best format, select the right document review platform for the case, and get up to speed on how to use it. I’m happy to discuss your upcoming project with you and help you prepare for, obtain, and conduct electronic discovery. Let’s chat before you receive a disc containing 8,000 pages of PDFs.

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