In his new blog post on his excellent Ball in Your Court blog, Craig Ball states: “Regular readers may tire of my extolling the virtues of native forms of production; but battleships turn slowly, and this one must yet be turned.”  Craig has covered those virtues many times over the years and the pitfalls of “TIFF+” productions, but this time, he literally swears by it.

In The Case for Native, I Swear, Craig notes (in terms of convincing lawyers and judges of those virtues): “Articles, speeches and blog posts can only go so far. What’s needed are published judicial decisions.”  In that regard, Craig recently supplied a declaration to a federal court, so he anonymized it for sharing via his blog.  He concedes “it ain’t Shakespeare,” but it’s honest and he changed a lot to make it difficult to identify the matter (even though he also notes that the Declaration is a matter of public record).

With that in mind, Craig lays out 50 points (the first four cover Craig’s qualifications to submit the declaration, which is standard) to address the plaintiff’s proposed ESI protocol calling for “TIFF+” productions vs. the defendant’s proposal for a native file production.  The various points addressed by Craig include the following contentions:

1. Times Have Changed, but Plaintiff’s Proposed ESI Protocol is Mired in the Past
2. Plaintiff’s Proposal Creates Asymmetry in Access to Evidence, and Unnecessary Cost
3. Defendant’s Proposal Reduces Burden and Equalizes Access to Evidence
4. Plaintiff’s Claimed Advantages for TIFF Productions Are Illusory
5. Native Productions Support Bates Numbering with Nothing Lost and Much Gained
6. Native Production Will Be Markedly Less Costly, Month-After-Month
7. Threading E-Mail for Review is Compatible with Producing E-Mail in Native Forms
8. Color Documents (i.e., “color is essential to the comprehension of the evidence”)
9. Cost of Hash Authentication

Points 5 and 6 above are particularly notable.  Point 5 is the argument that I hear most by people who advocate for “TIFF+” productions – that native file productions don’t lend themselves to Bates numbering at a page level.  But, it’s SO easy to produce native files and assign each a file level identifier number (call it a “file-level Bates number” if you want), then add a suffix for page numbers for anything that is presented in proceedings (which is usually a tiny fraction of what’s produced).  It’s so easy to do, yet so many lawyers and judges get hung up on it.

In point 6, Craig revisits his argument that he made earlier this year in this blog post, where he discusses how much more expensive it is to host TIFF files than native files, because TIFF files are so much larger.  How much larger?  To the tune of 41.74 times larger for one email between counsel (with attached Word file) that Craig analyzed and 12.59 times larger in another example of 24 publicly available Plaintiff publications and five sets of procedural rules from the U.S. Courts website.  Noting that so many in discovery today are using cloud hosted environments, Craig observes that “the larger the volume of data hosted, the greater the monthly subscription fee.”  This, of course, means significantly greater costs for the requesting party, not to mention potential search degradation).

As always, I won’t steal his thunder – you can check out his points via his blog post here, or his anonymized version in PDF here.  It’s a somewhat lengthy post, but worth it.  As for the need for published judicial decisions, I smell a follow-up blog post opportunity to look at some past cases and see how courts have ruled on the topic!  Look for that here in the next few days!

So, what do you think?  Do you think that parties should continue to convert native files to “TIFF+” formats for production or is that putting requesting parties at a disadvantage?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.