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
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
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
Tiff: You get less, pay more and destroy
evidence to boot. Isn’t it time to go native?
Austin-based Craig Ball ( firstname.lastname@example.org)
is a trial lawyer and computer forensics
and e-discovery special master.