At the 2011 ILTA Annual Conference I had the opportunity to refresh some of my e-discovery knowledge. A few years back I was in that market and like to stay up on developments. To this end I met with Christine Musil, Director of Marketing for Informative Graphics Corp. She gave me the run-down on redacting in native documents. I know ... this may sound a bit too e-discovery geeky, but it's actually an interesting topic, given past developments. The older controversy over producing (handing over to the other side in litigation) Word documents was including the sometimes privilege waiving metadata. With native document production now the rage, the issue of redacting has taken on a new importance, since the document content should remain 'original' while also containing redactions.
So much for my brief, overly simple, partially adequate explanation. I'll let Christine's guest post provide a more logical and complete explanation.
[Guest Post by Christine Musil, Informative Graphics Corp.]
Rule 34(b) of the December 1, 2006 amendments to the Federal Rules of Civil Procedure (FRCP) set the default obligation to produce a document “in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable”unless a different format is requested. Does this mean all documents must be delivered in their original, native format (e.g., Microsoft Word or Excel)?
Not usually. In fact, the request of native production is often made without the requesters knowing why they want it or if they will be capable of accessing the data if they get it.
A commonly-cited reason for requesting native format is metadata. Metadata is traditionally the computer data about a file, like author name and creation/modified dates, but now also includes unseen elements like comments, hidden rows/cells and formulas in Excel and comments and Track Changes in Word. However, this metadata may provide more than is reasonably necessary for the requester’s needs and more than the producer is legally obligated to provide.
According to Principle 12 of The Sedona Principles, as long as both parties agree at the onset, TIFF, PDF, native or a combination of all three is acceptable. This is why the often neglected Meet and Confer is so important so production format details can be hammered out early on.
The Meet and Confer presents the perfect opportunity to discuss concerns about metadata, production format and privilege. Ideally, someone who understands issues about document types, the possible volume of data and any issues about what the data contains (like privacy or proprietary information) should be present.
Another concern around native format production is redaction—the removal of privileged or privacy data from documents. Formerly done with a black marker and copier, today, electronic redaction tools such as Adobe Acrobat and Informative Graphics Redact-It can save a producer time by searching for privileged phrases, automatically finding private information, and creating a new, redacted rendition of the original document in TIFF or PDF format.
But how do you perform electronic redaction when native format is required? Redaction, by its nature, changes the document and requires it to be saved as a new version, regardless of format (even native). It is that specifically that makes issue of format less relevant for those documents needing redaction. Should a particular document be called into question, you can always produce the original document with its metadata completely intact -- but only if it’s called into question.
So while the hard fact remains that plaintiffs will continue to demand native files from defendants, understanding what is actually required and reaching agreements early will avoid potentially large problems later. Armed with an understanding of file formats and what metadata is actually needed, plaintiffs can be confident about the information they are requesting and defendants can be sure they are delivering what the other side is entitled to- and no more.