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Gregory L Fordham
For years now, most e-discovery has been performed by converting native electronic documents (digital evidence) into a different format such as Tagged Image File Format (TIFF) or Portable Document Format (PDF).
There are several drawbacks to this approach, however. First, there is a cost associated with transforming the original digital evidence into a different format. Second, the transformation also results in data loss.
The conversion, therefore, is like preparing for trial with only a picture of the murder weapon and no means to obtain fingerprint, ballistic, chemical analysis, sales records, ownership, registration and other relevant analyses. Of course, one party to the dispute would welcome such a scenario.
Despite the common practice, others have recognized the superiority of native format evidence. In United States v Davy, 543 F.2d 996, (1976), the increased efficiency and accuracy of native data was persuasive in compelling its production.
A similar result occurred in In re Air Crash Disaster at Detroit Metropolitan Airport on August 16, 1987, 130 F.R.D. 634 (ED Mich. 1989). In that case the production of nine track tapes was believed more economical and efficient than other formats.
More recently in the case of Williams v Sprint, 230 F.R.D. 640, (2005) the dispute involved metadata contained in native format documents. The Court ruled that, “When party is ordered to disclose electronic documents as they are maintained in ordinary course of business, i.e. as ‘active file’ or in ‘native format,’ producing party should produce electronic documents with their metadata intact. . . .”
Finally, the 2006 changes to the FRCP identify the format as an item to be determined during the 26(f) planning conference. In addition, Rule 34(b) was amended to permit the requesting party to specify the format in which it wants the data produced.
Despite these examples, resistance to native format evidence continues. The Williams v Sprint case, as well as others, describe the emerging standard for e-discovery production as TIFF or PDF format unless “the requesting party can demonstrate particularized need”.
Fortunately, the particularized need is easily demonstrated. First, the value of native format metadata is increasingly recognized. In Williams v Sprint the access to metadata was the essence of the discovery dispute.
Second, compare the increased cost of production caused by the conversion process. For this calculation assume 10 gigabytes of producible data.
The storage media on which to hold the 10 gigabytes cost less than $100. Similarly the labor to copy it there is also less than $100 assuming drag and drop.
If something more forensically sound were desired in order to preserve the file system date and time stamps of each file, the labor cost might be two or three times the drag and drop cost.
By comparison consider the conversion cost for TIFF or PDF. Most vendors charge between $1,000 and $2,500 per gigabyte to process the data. So, the total conversion cost would be between $10,000 and $25,000 for TIFF or PDF versus between $200 and $500 for native format.
Even the claim that much of the native format metadata is useless and should not be produced is a red herring. If a gigabyte contains the equivalent of 250,000 TIFF or PDF pages then a 10 gigabyte production would have the equivalent of 2.5 million TIFF or PDF pages. If so, would they all be useful?
Proponents of the conversion process advance numerous justifications such as a need for bates numbering individual pages, document security and visibility. None of these justifications are weighty.
The native evidence can have a bates number prefixed or suffixed to the file name. Similarly, TIFF and PDF images can be altered too. The only real security is provided by knowing the digital fingerprint of the file—native or converted. Finally, there are numerous software tools that can view hundreds of native format files. So, it does not have to be limited to TIFF or PDF.
In the final analysis, there is an economic answer for the litigator who thinks that the smoking gun resides in the opposing side’s computerized data but who has been reluctant to try e-discovery because of cost concerns. The solution: go native.