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Home / Client Resources /
Miranda Writes Review of Native Files Discouraged Dear Miranda, My firm handles a number of second request document productions each year. In the past couple of years, we have been faced with reviewing a growing number of electronic documents. We understand the problems with paper review of electronic documents, so we have been reviewing electronic files on our computers in their native format, then producing the files on disks or hard drives. Now the government says this method of production can be troublesome. Can you shed some light on the best way to prepare these native files for production in a form acceptable to the government? Leo W. Washington, D.C. Dear Leo, Many of our clients have reported difficulty in determining the best overall approach for reviewing and producing files from clients' computers in response to a second request. Likewise, the FTC and DOJ are working to conform their standard practices to the way businesses now create and store information. With the FTC's best practices recommendations issued at the end of 2002, now is a good time for everyone involved in second request practice to take a fresh look at the way electronic documents are reviewed and produced in merger investigations. Native Review of Electronic Files: Good Files Gone Bad It would seem that review of electronic files—emails, word processed documents, spreadsheets, and the like—in their native format would be the most logical and "true" form of review for preparing electronic documents for production. Unfortunately, native file review has significant downsides for your team, and even compromises the authenticity of evidence. Logistics and Review Limitations Native file review can be very complicated. Companies use dozens of software applications every day, including spreadsheets, word processors, email, and graphics programs. To complicate matters, corporations often have several different versions of the same program in use; some departments use Microsoft Word 97, while others may use Microsoft Word 2000 or Office XP. If you choose to review these documents with native applications, your firm would need to purchase, install, and maintain dozens of different applications. Significant efforts are required by your firm's IT staff to load all the necessary software programs onto every PC that will be utilized for electronic document review. This seemingly simple act can consume months of time and hundreds of thousands of dollars. Even then, members of the review team can view the documents only from PCs with all the necessary software installed. The logistical limitations of native file review are compounded by an inability to efficiently review, search, categorize, redact and produce information from native files. While reviewing native files on a computer screen gives your team an advantage over the expensive and time-consuming process of printing each page for manual review, the process is restricted by the functionality of the native software programs. For example, a large volume of email is typically gathered from clients in responding to a second request. Microsoft Outlook, one of the most common email programs, appears to be relatively user-friendly from a document review standpoint. The "find" functionality allows a user to pinpoint key words in the subject line or body of an email message, and messages can be organized in folders within the application. The program also allows a review of messages sorted by date sent or received, or by message author or recipient. What many people fail to realize, however, is that it is impossible to search attachments to the messages when relying on native program functionality. Native review of email would require the review team to manually open and check each attachment for relevant or privileged information. This method also prevents the review team from identifying any "bcc" designations associated with the messages. Other problems occur with spreadsheets or word processing programs, which lack point and click "tagging" functionality like that of many email programs. In these programs, documents cannot easily be sorted and organized for responsiveness. In any native software program, your review team will be unable to effectively redact privileged information. Production of data from native format, whether produced in paper or electronic form, also requires time-consuming manipulation of files from multiple programs in order to organize the responsive information in one place. Bates numbering or any other document marking must then occur outside the native applications. Altering the Data Even more important than the inconvenience of native file review is the potential for changes to the native files. For example, a document created in a word processing program typically stores a "date last modified" field in the document's meta data. The simple act of opening the file for review, even when no changes are made, will likely change the document's modification history. Other changes to the documents can occur when native files are loaded onto the review machines, before the legal team even begins its work. Without proper precautions, material details can be changed. The issue of time zones, for example, can be critical when reviewing email communications. When email files are copied from multiple time zones and loaded for review, the time designations displayed on the face of email messages may be altered. When information concerning the date or time of certain occurrences or communications matters to the case, this distortion of the data can be risky, and may raise issues of overall integrity of your team's document review practices. Review of Electronic Files in a Uniform Format: All the Advantages, None of the Risks Understanding that native file review is a risky proposition, your firm needs an option for electronic review. Perhaps the most straightforward answer to this question lies in the text of the best practices recommendations issued by the FTC in December, 2002. The FTC stated, "Native file productions are unsatisfactory for various reasons, and production by CD often imposes an unacceptable burden on our resources.
However, productions by .pdf format, accessed on the web, have proven to be extremely effective, for both the parties and our staff." The FTC's stated preference for receipt of information in a standard PDF format, accessed in a web-based database, is good news for your legal team. Web-based review of electronic documents is the most cost-effective and efficient means for reviewing large volumes of diverse types of files in a very short period of time. An experienced electronic discovery service provider will work with you to gather and process hundreds of thousands—even millions—of pages of documents from many different file types. Information stored on legacy systems, backup tapes, or other media that may have presented a challenge in its native format, can be easily displayed in a uniform format and stored in a web-based repository. By using any PC with an Internet connection, your review team benefits from the functionality of software designed exclusively for the purpose of legal document review. This means that searching, reviewing, organizing, redacting privileged information, and Bates numbering can all be done from one interface. Even more importantly, this review process enables your team to prepare the documents for production in a form favored by the government: providing access to documents in a web-based database. Numerous measures are in place to ensure confidentiality, including the ability to create an entirely separate database for government review. This method provides significant time and cost savings in the document review stage, and even greater efficiencies during production. |
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