Since 2012, New Zealand High Court discovery rules require parties to address the discovery checklist prior to the first case management conference. Just as you will be considering the methods to limit discovery to what is reasonable and proportionate, the discovery checklist requires you to consider the eDiscovery exchange format – the format that works best for you.
Not surprisingly, this may not always be the default format in the rules !
Often what happens is simply using the default PDF exchange format – and to change things up, the only slight variation being spreadsheets being provided in their native format !
Sure, most of the eDiscovery software systems now ‘talk to each other’ [Plain English = can easily provide documents from one to another], but there is often a format that works better for you, or more precisely your eDiscovery software.
The problems with image exchange
There are many issues with providing documents solely in an image format, which only increase with today’s data volumes.
1) Accessibility – why shouldn’t you have the same access?
Providing documents as PDFs (or TIFFs) is providing a static image of a document, effectively just a photograph. In doing so this may prevent the same access as held by the producing party. Upon converting a native file to image format, content like comments, annotations and highlights can easily be lost, in addition to the very important metadata.
As the other party probably has their documents in their native format, why shouldn’t you have the same access?
2) The significant and needless additional costs
Image files are significantly larger than native files, so to produce documents in image format can easily result in costing multiple times more than producing the same data as native files.
Like most people if you are paying for your eDiscovery software in some form of per GB model, the larger size of the image files will significantly increase your per GB hosting charges. It is not uncommon to see the size increase by 5 or 10 times of the native file volume.
Upon receiving another party’s discovery, the last thing you want is to incur additional and unnecessary time and expense to get their documents into a workable format at your end before you can interrogate them.
If you have the documents in their native file format, then you will be able to use the advanced features of the eDiscovery software programs. This will enable you to cull, filter and efficiently review to get to what you want faster and cheaper. Additionally, the metadata is already there and this can be used for listing purposes – potentially saving you thousands !
Whilst reviewing documents in their native format is a now a given, native or near native exchange is becoming more common.
The court encourages native eDiscovery exchange format
Often, I am asked how a party can compel the other side to produce documents in their native format. The answer is simple – the rules already encourage parties to do this.
The Discovery Checklist states “to reduce unnecessary costs of listing documents parties are encouraged to:
a) Use native electronic versions of documents as much as possible; and
b) Use the extracted metadata from native electronic documents instead of manually listing documents; and
c) Convert documents to image format only when it is decided they are to be produced for discovery; and
d) If document images are to be numbered, only number those images if they are to be produced for discovery.”
If you want or need documents in their native format, then discuss this with the other party (and the Court) in advance of/or at the first CMC. If you can substantiate your argument (which can easily start with the rationale above), the Court should permit you to provide documents in a format that is reasonable and proportionate.
Sure, today’s proliferation of data does require more upfront work to tackle the challenges and costs of discovery, but this work can save thousands later in the matter.
If the default exchange format does not work for you then propose a format that does – and do so at an early stage.
