Ride the Lightning

Yes, You Can Bates Number Native Productions!

June 17, 2019

I remember Craig Ball's original post on Bates numbering native productions, which probably says something about my age. But in a recent post, I was delighted to see him return to the topic because he is quite right, it never gained traction in the minds of the bar.

Craig says he has not yet succeeded in conveying the logic, ease and advantage of a bifurcated approach to Bates numbering and pagination. So, he gives it one more shot. I leave you to enjoy the manner in which he brings the horse to water, but here is the essence of what he says.

"For items produced in discovery, the unitization that makes most sense is the native unitization, files. Word processed documents, presentations, spreadsheets, photos, videos and sound recordings all manifest as files in the ordinary course. We store them as files, collect them as files, process and enumerate them as files and hash them as files for deduplication and authentication. It only stands to reason that we produce and Bates number items as files.

We “affix” Bates numbers to files in the same way that we identify files in the ordinary course. That is, we name each file produced or withheld to reflect its Bates number. It’s a flexible method that comports with the longstanding practice of naming images of printed pages to mirror the Bates numbers embossed on those pages. Bates numbers can be prepended to file names, appended to them or simply replace the filename (as the original filename is always produced in an accompanying load file). Nothing is lost and, because filenames aren’t stored inside files, changing a file’s name in this way doesn’t alter the file’s content or hash value.

Native production won’t end the use of Bates numbers; it just adapts the numbering to the appropriate unitization."

Naming files to reflect Bates numbers is hard for some to grasp. I think Craig is right that some people imagine it’s done manually, though of course it occurs simply and automatically, adding no cost to the process. Most lawyers wonder how they will use Bates numbered files. The answer is you use Bates numbered files in the same manner as you use any ESI in electronic discovery; that is, you employ an application to view the contents of the file and the application displays the Bates number. Not the native Word or PowerPoint program, but one of the many tools purpose-built to allow lawyers to review and search ESI.

This isn’t clear to lawyers who have trouble distinguishing between how they will review ESI versus how they will present it as exhibits. Understandable given the past, but that is now a costly confusion.

Since I can't say it better than Craig, here are his words, "Native production splits the process of Bates numbering. The producing party retains the right to assign the Bates number to the file produced. The right to add page numbers belongs to the party who prints the electronic evidence for use in a proceeding. The Bates number assigned by the producing party must be embossed on every page of the printout along with the page numbers. That way, the producing party can always relate a printed item to its source file. In turn, all parties can reference the printout by Bates number and page number in the conventional way lawyers cite to exhibits in proceedings. Yes, Virginia, there really is a Bates number and pagination method for native files.

The reason we never faced this presumptive confusion before e-discovery was because, if you used a document I’d produced to you in discovery, that document bore the Bates number I’d stamped on it. You were forced to use the pagination I’d assigned. You couldn’t print a version with different pagination because I hadn’t produced the electronic evidence to you; I’d produced a printout. That was convenient and acceptable back when the evidence and a printout were useful and complete in the same ways. However, ESI and printouts are not the same anymore. They aren’t useful in the same ways. They aren’t complete in the same ways. They don’t cost the same to use. Notwithstanding these differences, producing parties still claim the exclusive authority to assign pagination at the time of production. That is, they demand the power to impose the wrong form of unitization at the wrong point in the discovery process."

Craig points out the cost factor. Native format is the format in which the evidence is used in the ordinary course of business. It is the most complete, utile and economical form. It’s the form the witnesses used. It’s the authentic evidence.

Producing parties resist native production (still) with respect to e-mail and word-processed documents. Producing parties assert that electronic printouts (so called “TIFF Plus” productions”) are “reasonably usable” alternatives to native forms. Craig's experience is that they can be usable, but frequently are an inadequate substitute for the complete, utile native forms. More importantly, there is a huge cost imposed on requesting parties forced to accept TIFF Plus productions. A TIFF Plus production is many times larger in terms of bytes than the same production made natively. For most, the cost of loading and hosting electronically stored information is determined by the amount of data loaded, processed and hosted. Ten times more data costs ten times more to ingest and ten times more to access online, month after month. Ten times more is at the low end of the differential. While I am terrible at math, Craig makes the point very clearly.

A concrete example? Native production and hosting cost about $30,000.00 less for 150MB of data than the same data produced as TIFF images.

As Craig points out, producing parties don’t need to buy software, change workflows or study computer science to make this work. All the leading e-discovery software tools support the ability to name files to mirror Bates numbers. Of course, service providers might not be thrilled by their reduced billings for ingestion and hosting, but those savings directly benefit clients and, unlike the savings from, for instance, predictive coding, they don’t come out of lawyers’ pockets. Bully for that.

The important takeaway? "There are many easy ways to add Bates numbers and page numbers to files when you print them out. But here’s the most important takeaway: Lawyers customarily use just a fraction of items produced in discovery. All files are Bates numbered when produced; only that tiny fraction printed for use as exhibits must be paginated for making a record."

The bottom line: You needn’t give up Bates numbers to reap the savings and utility of native productions. It’s wrong to suggest, “You can’t Bates number native productions;” you absolutely can and you don’t have to depart from the familiar ways you use evidence as exhibits.

And bully for Craig in revisiting this topic because he is right. Lawyers just weren't "getting it." Perhaps his post will help.

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