e-Discovery Documents Production Formats:
Native, TIFF and PDF

How should attorneys address electronic files now as part of litigation discovery? 

The recent e-discovery rule amendments to the Federal Rules of Civil Procedure are altering how attorneys conduct litigation, now requiring that parties routinely retain and, if requested, exchange relevant electronic documents files.  Similar rules have been enacted by many states. These new rules reflect the reality that most documents created in the last several years exist in electronic form (some estimate 95% or more). e-Discovery will increasingly be discovery.

An 'electronic search' approach to discovery requires that all documents be converted to an electronically searchable form and that a method of searching across all files is available.  For electronic documents delivered in native file format, search is usually possible in some form or another. This is particularly true for standard Microsoft Office documents. Email presents more difficulties, as email attachments may need to be deconstructed from the electronic file holding the email to be searched.  Paper-based documents must scanned and OCRed to make them searchable as electronic files.  The OCR process inevitably introduces OCR errors, which diminishes the effectiveness of the electronic search, as compared with the search of native files or electronic documents based on native files.  

A 'electronic search' approach also requires that all documents are addressable as a collection from a single search query.   A number of systems are in use today by litigators.  At the high end, litigation document repositories may be established to make all documents accessible and searchable, often between multiple parties in different locations.  These systems may be comprehensive and expensive.  Alternatively, a law firm may make documents searchable from a file server on its local area network, or run LAN-based case management software, which may allow for indexing and searching of litigation files. For a small case, all documents might be stored on a single CD or DVD, or kept on a portable hard drive, and searched from the Windows operating system.   

Past Practices in Question

First, several practices that may have worked in the past, but may now be called into question, should be addressed.

• Paper Only Production.  In the past, electronic documents were printed and delivered in paper form.  Printed discovery alone, however, does not produce the associated metadata for a document.  Also, paper based files can be electronically searched only if scanned and OCRed.  This adds to the cost of reviewing electronic documents received in discovery, reduces accuracy because of OCR errors and does not produce associated metadata. This procedure should not be acceptable anymore, unless the parties agree.  As litigators learn the importance of metadata, this approach will become increasingly unsatisfactory.

• Print and Rescan to PDF or TIFF.  PDF is a modern format developed by Adobe Systems and is potentially a good choice for discovery of electronic files.  If created directly from the native file, the original underlying text is retained, making the file searchable in PDF without needing to perform OCR.  However, some litigants in the past have delivered PDFs or TIFFs of electronic files, not as a result of a straight file conversion (which retains the underlying text and perhaps some of the metadata), but instead by printing all the documents into paper form, and then rescanning the documents and saving them as electronic documents in a TIFF or PDF file formats.  While electronic documents are so created, this method of production strips out the text and the metadata from the original electronic file.

  Current Practices of How Documents Should Be Handled

Attorneys are now taking several approaches to e-Discovery when searchability or metadata are important.  Each approach has its own advantages and disadvantages. 

• TIFFs.  A common practice has been to take electronic files and save them as imaged based electronic files known as TIFFs or TIFs. TIFFs are electronic files, but as raster images, they are like a picture of the electronic document, and no text or metadata is retained as part of the file. 

  Advantages of TIFF Format Production

  • Ease of Bates Numbering.  Bates Stamping is used to identify which documents have been produced, particular documents and pages in connection with witness examinations, and which documents have been withheld for privilege.  TIFFs can be single or multi-paged.  Historically, litigation support vendors have often scanned paper documents, or converted electronic documents into single-paged or multi-paged TIFFs, with each file name being the Bates Number or Bates Number Range.  Each individual page in a production would have its own Bates Number.

  • Easy of Redaction.  Documents sometimes need to be partially redacted to remove references to privileged information, work product or trade secret information, identify which documents have been produced, particular documents and pages in connection with witness examination, and which documents have been withheld for privilege.  As a raster image, TIFF files are relatively easy to redact, as compared with native files or PDF files.  However the recent release of Acrobat Professional 8 with a built in PDF redaction tool has lessened this advantage of TIFF files.

  • Requirements of Legacy Litigation Support Systems.  Several legacy litigation support management systems work best or exclusively with TIFF files because these systems were designed when TIFF files were the only viable option.  These systems predate the development and popularity of PDF and native file review tools.

  Disadvantages of TIFF File Productions

  TIFF-based productions are still very popular, TIFF productions have a number of disadvantages compared with PDF and native productions.

  • Complex Load Files.  Because TIFF files are raster images, they do not retain computer readable text as part of the file  

  • Not Very Usable Outside of Legacy Systems.  Because of the complexities of the TIFF load file, these files are not very accessible or usable outside of the legacy litigation management systems for which they were designed.

  • Metadata Not Retained in TIFFs.  Metadata is not retained as part of a TIFF conversion.  To address this shortcoming, many e-Discovery providers now separately save file metadata in a database prior to a TIFF conversion.

  • Cost of TIFF Conversion and Load File Creation.  Because of the shortcomings above, a TIFF production requires that the producing party pay to convert electronic files to TIFF images and create the associated text load file so that TIFF-based litigation management systems can read it.  This can be very expensive in large productions.

• Production in Converted PDF files.  A more modern approach is to convert electronic files to searchable PDF files for a discovery production. PDF files overcome many of the limitations of working with native files.  Indeed, Adobe created both the TIFF and PDF formats and designed PDF as a more functional replacement for the TIFF.  PDFs have become ubiquitous in business and in law.  

  Advantages of Converted PDF File Production

  • Viewable in Adobe Acrobat. Files are searchable and easy to work with.  Anyone with Adobe Acrobat can view a file without the need to worry about having the right application program or viewer installed.

  • Bates Stamping.  Documents can be bates-stamped and pages specifically identified using a variety of software tools. 

  • Redaction.  Pages or specific passages can be redacted with Adobe's latest version 8 of its Acrobat Professional program.

  • Some Metadata Retained.  A PDF conversion can be set up to retain some of the metadata and then it can be viewed reviewing certain properties in the PDF file.    Retention of metadata in a PDF file is not automatic, and is dependent on the conversion software used and settlings used in the conversion process.  

  Disadvantages of Converted PDF File Production

  • Conversion Cost. As with TIFF files, conversion of electronic files to PDF requires  expenditures, as compared with simply delivering native file format. 

  • Not all Metadata Available.  A standard PDF conversion only captures some of the available metadata.  Information such as the document author and title typically may be captured.  The document creation date may be changed to the date the PDF is created.  Other key metadata, such as last save, last print, edit time, deletions, comments and hidden text usually are not captured in the PDF copy.

• Production in Native File Production.  Some practitioners pursue discovery in native file format, the original file format in which the electronic file was produced, such as the Word, Excel or Outlook.  This has become more popular since the the new federal e-Discovery Amendments as it provides the requesting party greater leeway in requesting and files in native format. 

  Advantages of Native File Production

  • No Conversion Expense.  Unlike TIFF or PDF productions, there is no conversion expense in delivering files in native format.

  • All Metadata Retained.  All file metadata is can be retained in a  native production.

  • Text Searchable.  Text is usually searchable the best in native format.  There is no chance of text being lost or corrupted in a file conversion to PDF, or a TIFF load file, or the introduction of OCR errors.

  • Some Documents Don't Display Well in other Formats.  Native may be the only practicable format for some file formats, such as spreadsheets.  Excel and other spreadsheet files are notorious for converting poorly to TIFF or PDF, often becoming unintelligible.  Plus, spreadsheet formulas, hidden cells and hidden text usually do not make the conversion to other formats.  

  Disadvantages of Native File Format Production

  • Difficulty of Pre-Release Review of Metadata.  Metadata, by design, are not easy to review in native file format.  Some metadata in Office files can been found by clicking through various property screens, but this is time-consuming, requires a consistent methodology to view all viewable metadata,  and end the end does not access all available metadata available in the file.   Newer litigation management systems will display metadata of native files.  

  • Difficulty in Bates Stamping at the Page Level.  Documents in native file format cannot be easily Bates-stamped, and any Bate stamping will change the metadata.  Often Bates stamping of native files is handled instead through a file naming convention, in which the file name is modified to include a Bates designation.  This can work well, but does not allow for page-level identification.

  • Inability to Easily Redact.  Documents produced in native file format cannot be easily redacted.  For this reason, in a native production, documents that need to be redacted are often handled in a different manner, such as converting redacted documents to another format that can be redacted, such as PDF.

  • Difficulty of Pre-Release Review.  Attorneys for the party producing electronic files must review the files to see if they are responsive to the discovery request or include privileged information or trade secrets.  This can be difficult as electronic files may have been created in multiple applications.  Modern litigation support applications allow most native file formats to be reviewed without installing the applications that created the file.  Plus, modern litigation support applications allow metadata of native files to be reviewed in an easy fashion.

  Conclusion

  Advances in technology are reshaping how litigation discovery is handled.  Use and availability of electronic documents is changing how discovery is done, with an increasing emphasis on search.  Additionally, metadata availability in electronic files requires that litigators find effective tools to review and analyze this new source of information. New discovery rules reflect the reality of available technology.  Prior paper-based approaches are ineffective and becoming outmoded.

  The best file format for discovery will usually turn on how the attorneys and litigation team staff plan to review the files.  Document management systems usually are optimal for files in certain formats.  Plus, consideration should be given on how Bates numbering and redaction will be handled.