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Miranda Writes

Selecting a Form of Production

Dear Miranda,

Recently I began the task of working with opposing counsel to formulate an agreement for how my firm will produce documents in a large case. We used an online review application to identify all the responsive documents, which we have tagged and stored there. What are your thoughts on the various options for producing the documents?

Dan F.
New York

Dear Dan,

Many attorneys approach electronic discovery by focusing on the tactics of document review, and forget to consider the strategy of production options.

Often, these questions are left to the last minute as lawyers scramble to meet court-enforced requirements that can put them at a competitive disadvantage relative to opposing counsel. Failing to adequately plan for production can also cost your client a lot more, both in terms of dollars and goodwill.

While there are many ways to produce documents, some of which are undesirable for obvious reasons (such as producing documents in native file format -a topic complex enough to deserve its own column), let's examine three popular options for document production, and the considerations relevant to each.

Producing in PDF
Many people fear producing PDF files to opposing counsel or a government agency because they believe PDFs offer too much functionality to the receiving party. One of the first concerns frequently raised focuses on the PDF format itself: "PDFs are searchable. Why would I give opposing counsel the ability to search my documents?" While it is true that PDFs are searchable (when created directly from electronic files1), smart attorneys will weigh this in the context of the big picture. Considerations include:
  • What goes around comes around. Offering PDFs to your opponent may enable you to negotiate receipt of PDFs in return. Three reasons to opt for PDF over TIFF are:


    • Turnaround time: Because the file size of PDFs is significantly smaller than TIFFs, converting to PDF is much faster.


    • Speed of review: PDFs are faster to load in a software application than TIFFs, resulting in faster overall review time.


    • Cost:Capturing the text along with any meta data required for reviewing TIFFs online often costs an additional fee. These data types are usually automatically captured at no additional charge when processing electronic files into PDFs.


  • Knowledge is power. Because she knew the functional value of PDFs, one knowledgeable attorney recently was able to trade her client's willingness to produce documents in PDF for an agreement with opposing counsel on another issue more important to the client.


  • Goodwill has its place. One senior associate involved with a recent government investigation recognized that producing in PDF format would have a far faster turnaround time than TIFF imaging. With a tight timeline for review, and the client's desire to have the government issue its findings as quickly as possible, production in PDF served the best interests of all involved.

Producing in TIFF
These days the majority of our clients request production in PDF. Still, out of the thousands of document exports and productions we completed last year, many were rendered to TIFF. Almost all TIFF productions include a "load file" which is sent with electronic documents to make the TIFF more useful than just the image itself. A load file may include a meta data file for each document, a text file for each document, and, in some cases, an image viewer file.

Today, opposing counsel is usually savvy enough to demand the ancillary load files required to make the text associated with a TIFF image searchable. Much of the original logic associated with choosing TIFFs as a strategic advantage ("they can't search it") has therefore been negated.

Although TIFF's major strategic advantage has been blunted, there are still times when producing in TIFF is a viable option. For example:
  • TIFF often isn't debated. PDF is rapidly gaining popularity, but many attorneys who request electronic production of responsive documents still expect TIFF files. Quietly meeting this requirement may save time on negotiating points that aren't material to your overall case strategy.


  • TIFF may be the right choice for other software. While large-scale document review is best handled using an online review application with a uniform format like PDF, many law firms still use trial preparation software applications that require TIFFs with load files. In such cases, TIFF production is requested to enable the receiving party to utilize other software applications available for trial preparation.

Producing Paper
Sending opposing counsel boxes of paper when electronic files are available is bound to push an already tenuous relationship that much further down the adversarial road. Case law also instructs that those who produce in paper without advising the opposing party of the availability of electronic files may result in significant expenses to re-produce the relevant materials (see, e.g., In re Bristol-Myers Squibb Sec. Litig., 205 F.R.D. 437 (D.N.J. 2002)).

Producing paper is increasingly uncommon, very expensive, and usually unacceptable when electronic files are available. However, there are some rare circumstances when producing paper actually may have mutual benefit. For one client, a government agency was so insistent on getting documents as soon as possible that the client was able to buy some time by offering to hand over whatever paper documents they had already reviewed. This rolling production approach of producing paper first gave the government agency something to focus on while the attorney gained a little breathing room to finish collecting and thoroughly reviewing the electronic files.

Conclusion
The earlier you consider production strategies, the better the overall results will be for you and your client. Use your production options as a strategic advantage. Whether it's simply to minimize costs or to use as a chit in other negotiations, remember to leverage these options as one more set of tools in your electronic discovery toolbelt.






1 For those legacy systems that scan documents and then convert them to PDF, there's very little difference when compared to TIFF images in terms of the strategic benefits and costs. If you're using a system that relies on that approach, please refer to the "Producing in TIFF" section.
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