Production In Original Digital Format — The New Normal 

// Ed. note: This article first appeared in ILTA’s Peer to Peer magazine. For more, visit our ILTA on ATL channel here. 

When handling electronic documents in litigation matters, one crucial decision to make is how to produce the data. The ILTA Litigation Practice Support Survey asked, “In what format do you most frequently produce?” The results showed that 41% of respondents produced data using TIFF / Text files with metadata load files, 36% produced data in PDF or Native format with or without load files, and 22% produced Native files. 

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This article will proffer why Native production with or without load files is the most advantageous way to produce records. Please note that in the spirit of reconciliation with indigenous communities in Canada, Native production will be referred to as production in its Original Digital Format (“ODF”) as guided by the Sedona Canada 2022 principles.

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The landscape of eDiscovery evolves rapidly as new sources of evidence change the definition and boundaries of what constitutes a “document.” Litigation support professionals manage a deluge of data from a variety of sources, including collaboration apps, social media, and mobile data, bringing challenges with embedded links, emoticons, and more. Production of this new data, along with standard file types (emails and eDocuments), needs to be managed with efficiency, diligence, and planning. Collaborating with counsel to develop a practical Electronically Stored Information (“ESI”) protocol and proactively discussing documentary disclosure will assist in avoiding rework and potential spoliation of evidence and ensure that evidence is produced in a practical, organized, and cost-effective manner.

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ODF production involves exchanging documents in their original format. While TIFF production is necessary for documents that require redactions or the management of confidential information, ODF production offers several advantages that can significantly benefit legal proceedings. Below are five reasons why ODF production should be considered as the preferred approach in litigation matters:

1. Preserving Metadata 

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Metadata, including date stamps, author information, and document properties, can be critical in litigation cases. ODF production maintains this vital data, ensuring its authenticity and reliability as evidence. TIFF images are stripped of metadata, which then requires the re-creation of that metadata and its separate production. Other document properties are simply lost in TIFF format. 

 2. Reduced Risk of Spoliation 

Spoliation, the alteration, destruction, concealed and/or lost evidence, is a constant concern in litigation. ODF files are less susceptible to allegations of spoliation, providing a higher level of document integrity. ODF production preserves the original content and appearance of documents, providing the reviewer with an indication of what the file looked like in its original form. This transparency can reduce disputes, as parties can see the unaltered documents, fostering trust in the legal process.

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3. Cost Efficiency 

Converting files to different formats can be time-consuming and expensive. ODF production eliminates the need for conversion, resulting in cost savings and a streamlined process. TIFF productions are a costly relic of paper-based records. TIFF and PDF production increase the expense and reduce the practicality of the production. 

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4. Easier Review and Analysis 

The review and analysis of ODF documents is simpler, faster, and more straightforward for legal professionals, expediting decision-making. The more searchable metadata enables legal professionals to find relevant information and isolate critical documents more efficiently. This is invaluable for early case assessment and document searches during the litigation process.

5. Compatibility and hosting 

ODF production ensures compatibility with various platforms and software, reducing the likelihood of technical issues when accessing or presenting documents in a litigation setting. TIFF productions are often much larger in volume and size, significantly increasing the costs for responding parties to ingest and host. 

In summary, while ODF production offers numerous advantages, it is essential to consider the specific requirements and guidelines of your litigation matter. Even though the document production stage may be months or years, the production format should be discussed and agreed upon during early litigation planning and included in the ESI protocol. Consulting with legal professionals to determine the most suitable approach for your unique situation is crucial. In most instances, ODF production should be the preferred choice, providing greater accuracy, transparency, and efficiency in the legal process.

Stephanie Mills is the Manager of discovery Services at Cassels, Brock, and Blackwell, LLP. She has extensive experience in civil litigation with an emphasis on intellectual property law, aboriginal law, and class actions. Stephanie offers experience with the management of evidence as it pertains to discovery and trial preparation and frequently assists in such capacity with multi-week hearings.  A Certified eDiscovery Specialist sitting on the Board of Directors for the Toronto chapter of ACEDS, she also participates in several groups affiliated with litigation support and eDiscovery, including ILTA and Women in Discovery. Stephanie has served as a legal professional since 2003.  Topics

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