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a protective legend from a .tiff image or printout is child’s play using software found on any computer. Demanding that Bates labeling for ESI be tam-perproof is demanding more than was required of .tiff or paper productions.

2. Opponents will alter the evidence. Alteration of evidence is not a new hazard, nor one unique to ESI. We never objected to production of photocopies because paper is so easy to forge, rip, and shuffle. Tiffs are just pictures, principally of black and white text. What could be easier to manipulate in the Photoshop era?

Though any form of production
is prey to unscrupulous opponents,
native productions support quick, reli-
able ways to prevent and detect altera-
tion. Simply producing native files on
read-only media (e.g., CDs and DVDs)
guards against inadvertent alteration,
and alterations are easily detected by
comparing digital fingerprints of sus-
pect files to the files produced.

How To Bates Label Native Production

Nowhere on “La Joconde” — that most famous of all Leonardo da Vinci mas-ter-works — does it say “Mona Lisa.” Yet, despite theft and 100 years of efforts to “redact” her, using everything from acid to teacups, the world knows Mrs. Gio-condo without stamping “Mona Lisa” across her enigmatic smile. Neither must we downgrade or deface electronic evidence produced in its native forms to retain the benefits once derived from Bates-stamping paper documents.

A native file can be given almost any name without altering its contents or changing its hash value (aka its digital “fingerprint”). So, it’s fast, free, and easy to rename an electronic file to carry any Bates-style identifier — even a legend like “Produced Subject to Protective Order” — so long as the length of the name stays under 255 characters.

Tips for Bates labeling native production:

» When replacing a file’s name (versus prepending or appending an identifier in the name), preserve and produce a record of the original and substitute names.

» Establish an identification naming protocol where, e.g., the first four characters identify the producing party; the next nine are reserved to a unique, sequential numeric value (padded with leading zeroes); and the final five include a separator (i.e., hyphen) and a four-digit number reflecting pagination that is required to be embossed only when the file must be printed to paper or reduced to an image format for use in proceedings or as exhibits.

» If you include a truncated hash value in the filename (e.g., the first and last four digits of the file’s MD5 hash value), all parties gain a portable, reliable means to confirm the electronic file is authentic, unchanged, and properly paired with the right name cum Bates identifier. You can’t do that with printed Bates numbers! — C. B.

away is user-contributed content, and that a form of production isn’t reasonably usable if it destroys the information. If opposing counsel argues they put some of the excised content into load files, that’s disingenuous: If you cannot see a comment or alteration in context, its meaning is often impossible to divine.

Your opponents may also be reluctant to concede their obsolete tools don’t show contemporary content. Fearful that your tools might show content their tools miss, they jettison content rather than upgrade tools.

4. Redacting native files changes them. Indeed, that’s the whole idea. So the argument that the integrity of native productions will be compromised by removing privileged or protected content is silly! Instead, the form of production for items requiring redaction should be that form or forms best suited to efficient removal of privileged or protected content without rendering the remaining content wholly unusable.

Some native file formats support redaction brilliantly; others do not. In the final analysis, the volume of items redacted tends to be insignificant. Accordingly, the form selected for redaction shouldn’t dictate the broader forms of production when native forms have such distinct advantages.

Don’t let the redaction tail wag the production dog. If they want to redact in .tiff or PDF, let them, but only for the redacted items and only when they restore searchability after redaction.

Cast Off the Albatross! Tiff production had its day. Now, .tiff dumbs ESI down to the level of paper just so we can use old, familiar tools and workflows. Native production isn’t simply better, it’s cheaper, too. Why pay to convert native forms to .tiff and load files? Smaller native file sizes also trim the cost of ingestion and storage.