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Coordinated parallel (not mixed) productions, i.e., entire production in both native and TIF/TXT

Created: 10 Aug 2012
Elton Johnson's picture
3 Agree
0 Disagree
+3 3 Votes
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PROBLEM: Document control concerns regarding native productions.

As we know, Clearwell analytics are outstanding for native files. In our litigation cases, this works well for our own clients' documents, as we can always collect in native format. It works less well when we request native files from other parties to a case, or from non-parties, during the discovery phase of a litigation case. Those non-clients may not be willing to produce in native format, and the court may not be willing to order them to do so. When they don't produce their ESI in native format, Clearwell becomes less attractive as an ediscovery platform for those documents. In a litigation context, the main problem--counsel's concerns about production of damning metadata aside--when our clients or non-clients contemplate producing in native format, is that when it comes time to use a document or set of documents as an exhibit to a motion or deposition, or at trial, one needs a copy that is endorsed with the production number--and ideally with unique, sequential numbers on the pages. This is not merely because lawyers and judges can't move on from paper (or even quasi-paper images). It's also because in a litigation case one must often be able to refer to a particular page with specificity, and the ability to do so may also give a sense of comfort that the document is authentic. The native production's lack of unique sequential numbers on "pages" is thus a document control and an authentication problem, in a litigation case.

POSSIBLE SOLUTION: Coordinated parallel productions in both native and TIF/TXT/metadata

It may be possible to create an option in Clearwell to generate coordinated parallel productions in both native and TIF/TXT/metadata. The currently available "native" and "mixed" production format options are excellent for contexts where the above-mentioned document control and authentication concerns do not arise, but since both of those production options include native files without sequential numbers on each "page," they are often rejected by parties in the course of ediscovery in litigation cases. The remaining production format option currently available in Clearwell, the "images" format, solves the sequential page numbering issue, but deprives the requesting party of a production to which Clearwell's native format analytics can be applied. To retain this desirable native production format for the litigation scenario, then, possible solutions appear to be either: 1) native production with a post-production capability to readily print Clearwell "native" production files to image with sequential numbers (e.g., file name or field associated with the document, say, "ABCD00005678," that will consistently print to image upon demand using decimal increments on the pages, say "ABCD00005678.001,"  "ABCD00005678.002," "ABCD00005678.003," etc.), or 2) coordinated parallel productions in both native and TIF/TXT/metadata formats, where the images in the TIF/TXT/metadata part of this dual production manifest the decimal increment page numbering described at preceding solution 1, but are consistent with the native file production numbering in the native part of this production. I favor, and propose here, this second solution, given current expectations in litigation ediscovery, notwithstanding the extra volume/storage involved. I think it would actually minimize the tendency to do exclusively TIF/TXT productions in litigation, and thus reduce the tendency for parties to avoid, and fail to receive the benefits of, Clearwell for such non-native productions--especially if Clearwell were to allow fee-free loading for the redundant TIF/TXT part of such a coordinated parallel or dual production.