Last week, Craig Ball published an article in Law Technology News with the provocative title, Is it Malpractice? Processing .tiff files is expensive and as messy as stabbing vampires. Craig, as always, makes compelling points relative to the inefficient manner in which the electronic discovery process is often managed. For example, we, too, are surprised at how frequently litigants fail to stipulate the format in which data will be exchanged. It may not constitute malpractice, but to request a production from opposing counsel and not to ask for key metadata or searchable text is to ignore a rich source of relevant information that is readily available without significant cost (that is until you fail to ask for it).
But to argue that rendering documents to .tiff images rises to the level of malpractice (which we don’t really believe Craig is suggesting) ignores many of the fundamental reasons why the profession settled upon exchanging static images in the first place. Certainly there are cost ramifications to take into account, but the cost of rendering .tiffs has declined precipitously over the years. And even though a .tiff is not as functional as a native file, when produced with appropriate accompanying metadata and text, a .tiff becomes a solid and highly functional substitute in most instances (.xls spreadsheets being a prime exception). And from a practical standpoint, simply put, at some point in the litigation it becomes imperative, for purposes of integrity and expediency, that all of the parties—the litigants, counsel and witnesses– “work off of the same page” (figuratively and, more importantly, literally).
At DiscoverReady, we staked a claim, and our reputation and pricing model, early on urging clients to keep data in native format as long as possible. Native files are simply more efficient and more functional for document review. With that said, when it comes time for production, should litigants choose to exchange native files, there are genuine risks and client disclosure issues that law firms need to address… and all too often these topics are overlooked.
So back to the notion of malpractice.
When a .tiff image is delivered, the producing party knows with certainty the information being shared. In other words “What you see is what you get” (Remember WYSIWYG anyone?)
When you produce files in native format it is a virtual certainty and a practical necessity that hidden information will be produced that has never been carefully reviewed by an attorney. Standard examples of information that is frequently un-observed in native format include author and reviewer comments, tracked changes, embedded files, .ppt speaker notes, and individual .xls contents and formulas. This issue is exacerbated when the attorney teams are not well-versed in native file review protocols or when the review takes place in a “near native” review tool, such as Quick View Plus, that completely restricts the reviewer’s ability to identify many hidden items.
From a risk perspective, if the parties agree on native file production, we suggest to reduce the possibility of malpractice issues that (a) the attorney and technical teams need to be well coached on best practices for executing native file reviews (a topic that we’ve been a leader on for years), and (b) the client should be made aware of the likelihood that certain information will be shared that may not have been fully reviewed by the attorney team. This is a risk that most in-house counsel will be willing to take (and frankly there’s little alternative when it comes to reviewing and producing data such as .xls spreadsheets).
But should the law firm proceed with native production without first disclosing – and getting client signoff on – the attendant risks … then we can start the discussion of attorney malpractice.
A recognized thought leader in e-discovery, Maureen collaborates with the company’s clients and operations teams to develop innovative information strategies for legal discovery, compliance, and sensitive data protection. She speaks and writes frequently on significant issues in e-discovery and information governance, and participates actively in the Sedona Conference Working Groups on Electronic Document Retention and Production and Data Privacy and Security. Prior to DiscoverReady, Maureen was a partner at Paul Hastings LLP, where she represented Fortune 100 companies in complex employment litigation matters.