Just as in the evolution of the legal industry from paper to TIFF images, the standard is shifting to native productions. While this transformation is occurring, many still have unanswered questions regarding native productions and how to handle various scenarios that may arise. We will take a look at a few of these scenarios and the options that are available.
The first scenario in native productions is how to handle confidentiality and Bates numbering. For years we have created an image for each page of a document, branded the Bates number in the lower right corner and then added a confidentiality statement when needed. Of course when dealing with native documents, this is not a possibility. So how do you add these two types of tags? Typically you will number the production set on the document level rather than the page level of TIFF productions. The native document will be renamed to reflect this Bates number and the addition populated within the provided metadata. For documents needing a confidentiality statement, this can again be done through the file name as well as a metadata field. A confidential document would be named “PROD000001_CONFIDENTIAL.xlsx,” for example. This is the most effective way to manage a native document production.
The native documents have been numbered and produced natively, so now the question becomes how to enter these items into evidence for a deposition or trial. This is one of the main arguments used against producing native documents. For the most part at trial, TIFF images or paper copies are what are submitted into evidence. In order to identify such documents, the Bates number can be branded on each page or image followed by a page suffix. If the document was tagged PROD000001 for production, then the evidential numbering could be something to the effect of PROD000001_001. Periods and dashes may be used in place of the underscore as well. The attorney could then reference PROD000001 page 5, which allows a stamped version to be entered into evidence but still saves money in the long run as the documents used for deposition and trial tend to be a small portion of the total documents produced in the case. Since the party entering the document into evidence must give copies to both sides, the format entered into evidence is the one that the entire group uses. This system provides continuity for the deposition and/or trial team.
Native production is still very new to most case teams. It remains scary and something that most people do not want to try unless they are forced to due to case size. Those that have gone ahead with it usually can attest to the cost savings, time savings and relative ease of use. Case law has not quite up to date on native productions, and there is not much out there other than examples of parties requesting it or complaining about it. The crucial component is to make sure that you have an agreement with all parties up front on the production format. Come up with solutions together on how the issues described above will be handled if a native production is requested. As with anything in litigation, communication is key!