Anticipation of Litigation Advisor

CAN'T WE JUST PRODUCE IN PDF?

February 18, 2019

By: Jill McIntyre

There it is:  The fallback position, usually expressed with exasperation.  “Because I don’t understand the words they use in e-discovery.  And I have heard that e-discovery is expensive.  And we all understand how to use PDF.” 

 

Producing emails and other electronically stored information in portable document format (PDF) is certainly permissible if the parties agree to it.  Though printing each electronic file to PDF will be time consuming and susceptible to human error.  And you should determine first whether searchable PDF is required, because printing to an image and creating a background text file can often be done in one (Did I say time-consuming?) step.  If PDF is your chosen production format, requiring searchable PDF will avoid degrading the evidence any more than you already are doing by flattening it and omitting its application and system metadata. 

 

If PDF is your chosen production format, other e-discovery considerations will still pertain:  Will you require production numbers on the face of each document?  Will you start a new number at each page or at each document (with page number suffixes)?  Will redaction be necessary?  Should the redaction box say anything?  Should the redaction box be a different color than the background of the imaged file?  Will color documents, including photographs, need to be produced in color?  Does resolution matter? 

 

Parties whose Agreed Order Regarding Form of Production requires production in PDF should still answer the questions posed above and should require ongoing preservation in native format, in the data’s original location, just in case the native version is needed down the road.  And these days, most who settle for an imaged production (like PDF) carve out for native production XLSX, PPT, audio files, and video files, which are far less usable or even unusable as images. 

 

Jackson Kelly urges clients to use and request native productions.  Rule 34 requires production in a usable form.  Electronic files (including Word documents, Excel spreadsheets, PowerPoint presentations, and emails) – unlike paper – have multiple dimensions that support an investigator’s ability to find, use, and trust the information contained therein.  When producing parties convert electronic files from their native format to paginated images, they remove critical content.[1]  If a file’s native format is proprietary or unusable by the client, it is appropriate to convert the file to a standard format.  But when a file is sought in its native format, the decision to convert it to a less usable format serves no legitimate purpose.  Indeed, one could argue that the expense incurred by converting the data serves solely to reduce the utility of the data provided.  No ethical principle would justify such waste.

 

Converting native files to PDF or printing them to paper, Heaven forbid, produces a different file from what was created by the responding party or its agents.  Those differences can be profound.  Embedded metadata that sheds light on the history and origin of the files (e.g., when they were created, who last edited them, etc.) is obliterated.  Sometimes content is truncated.  For example, we have seen printouts of spreadsheets that omitted columns and rows of data not included in the “print screen.”  We have seen Word documents missing their comment bubbles and records of tracked changes.  Conversion frequently strips out searchable text.  The recipient of such files is deprived of the option of filtering the production to emails sent within a date range or by a specific communicator. 

 

Complete native files permit deduplication and near-deduplication (clustering), sorting, filtering, threading (organizing an email sequence into its trunk and branches), searching, normalizing, and authenticate information in a way that PDF does not permit.  Finally, copying and sharing electronic files in their native format is always faster and less expensive than converting them to images and extracting their text, plus native files are smaller and less expensive to store than their bloated facsimiles. 

 

Can’t we just produce in PDF?  Sure, you can, but why would you? 

 

Author:  Jill McIntyre, Member, Litigation

© February 2019 Jackson Kelly PLLC