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Native Files for the 3D Experience in Civil Litigation

Posted on May 20th, 2013

Plaintiff eDiscovery Experts Explain 21st Century Document Review

When a party seeks electronic discovery in civil litigation, obtaining data in its native format is the equivalent of a 3D experience. Rather than looking at a limited 2 dimensional view of a document, native format offers the ability to learn about the “data about the data” and provides critical insight into the history and creation of a document.

So why would a defendant hand over electronic discovery in a different format than native files? From an adverse litigation perspective, the defense wants to produce the minimal amount of electronic data discovery while still complying with the applicable rules of civil procedure. Although Federal Rule 34(b) states that files should be produced as they are kept in the usual course of business, many defendants will argue production in native format is overly burdensome, expensive and/or unnecessary.

Plaintiffs must be aware of how to preempt and respond to this common objection. It is absolutely essential that at the outset of the litigation, Plaintiffs request electronic discovery in native file format to avoid a non-native production format from becoming the discovery production standard for the case.

Metadata in Native Formats for Plaintiff Electronic Discovery

Metadata – or “the data about the data” – tells you when, where, who and how data was first formed, as well as when and how it may have been altered or manipulated. When data is produced in its original or native file, you can gain a plethora of information that is not ascertainable on the face of a document.

When a responding party purposefully changes native files into TIFFs (Tagged Image File Format) or PDFs (Portable Document Format), the data goes from 3D to 2D. TIFF and PDF format is merely the equivalent of taking a picture of a paper document or computer screen—it is a flat image!  For example, if a draft document was created using Microsoft Word and contains tracked changes or comments, but the defendant produces only a TIFF of the document without first un-hiding the edits or comments, they will likely never be discovered without the native Word document and ability to unhide the edits and comments.  In short, with only a TIFF image, one might never even know that edits and comments are embedded into a document.

When is Optical Character Recognition (OCR) Necessary?

In some cases, however, there may be relevant evidence that is only available in hard copy, two-dimensional paper formats. When this is the case, Optical Character Recognition (OCR) software will be a great boost for plaintiffs needing a cost-efficient and effective means of reviewing, searching and targeting hot documents.

Enhanced OCR can turn an image from TIFF or PDF files into a searchable format. The text can then also be analyzed using with eDiscovery software for automated issue coding as well as permitting the document to be translated to or from any foreign language for international litigation.

Pre-Discovery Trial Strategy to Boost Plaintiffs’ Cases

It is essential that plaintiffs have a solid strategy when issuing electronic discovery requests in complex civil litigation, class action lawsuits and multidistrict litigation (MDL). The more clear the requests are in delineating the requirement for native productions the better chances of prevailing on any objections the defendants may raise later as to burden and expense.

Get the best form of data you need and require from your plaintiff eDiscovery requests. For more information about uncovering hidden truths by strategic planning and the use of native files and OCR technology in modern civil litigation, contact our plaintiff electronic discovery experts.

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