Blind as a catI took Introductory Psychology with a phalanx of freshmen in the cavernous Hamman Hall amphitheater at Rice University. Thirty-five years later, I best remember the astounding experimental work of Cambridge researchers, Colin Blakemore and G.F. Cooper, proving the ability to see isn’t born in us, but must be learned. Blakemore and Cooper reared kittens in darkness save for five hours a day when the kittens were placed in environments rigged so they could see only horizontal or vertical stripes.  When later exposed to a dangling black rod, the felines reared with horizontal stripes could see the rod only when it was positioned horizontally. As the rod was turned vertically, only the vertical world kittens saw it.  The rod “disappeared” in the eyes of the horizontal world kittens. Deprived of experience with the other plane, each group of kittens was incapable of seeing it. Their visual cortices didn’t develop the cells to see the horizontals or verticals they’d never experienced.

I think of those poor kittens as I ponder the relentless pushback I face trying to help lawyers see the unmistakable advantages of native review and production of ESI versus TIFF image and load file productions.  I’m starting to appreciate that what strikes me as pig headedness may just be kitten headedness.

Deprived of experience with native forms in production, lawyers lack the “cells” to see how very much cheaper and easier native forms are to use in e-discovery. They can’t picture a world without pagination and embossed Bates numbers, and lack a context to envision the simpler, faster and more accurate tools available to safeguard evidence integrity when produced natively. They are content to keep stumbling into chair legs like vertically-deprived kittens.

Once, I questioned a partner at my first law firm why there were no women lawyers in the firm.  I swear he replied, “We tried a woman lawyer once, and it didn’t work out.”  Likewise, I meet the odd litigator who claims to have tried native production, and says it didn’t work out.

Digging deeper, those lawyers’ notion of native production involved opening each file produced in its native application for review—something you just don’t do.  Else, their vendor or lit support folks converted native forms into images behind-the-scenes; so, of course they wouldn’t see the advantages or savings.  The dismissive lawyers still inhabit a world devoid of verticals.

I just penned a Ball in Your Court column for the 2/13 print version of Law Technology News called Debunking the Case against Native Production.   I discuss the arguments parties use in support of TIFF and load file productions and their “usual suspects” attack on native production.  The case against native pricipally hinges on four bunk-laden claims:

  1. You can’t Bates label native files;
  2. Opponents will alter the evidence;
  3. Native production requires broader review; and
  4. Redacting native files changes them.

My goal for the column was to equip those who seek native production with facts to counter arguments supporting the wasteful status quo.

But I confess it feels like a waste of time because the facts don’t seem to matter much.  The reply remains, “everything you say about native makes perfect sense, but we always do TIFFs and load files.  It’s good enough.”

But it’s not good enough.  Not hardly.  And it’s a whole lot more expensive.  If you’re one of the tiny minority of lawyers who’ve experienced the ease of e-discovery with tools purpose-built for native review, you know what I’m talking about.  Once you “go native,” you never go back!

By “native,” I mean data in the original electronic formats the producing party uses for, e.g., e-mail, word processing, spreadsheets and presentations.  A native file is inherently electronically searchable and functional until it’s converted to TIFF images, when it loses both searchability and functionality.

Because converting to TIFF takes so much away, parties producing TIFF images attempt to restore a measure of electronic searchability by extracting text from the electronic document and supplying it in a load file accompanying the TIFF images. A recipient must then run searches against the extracted text file and seek to correlate the hits in the text to the corresponding page image.  It’s clunky, costly and incomplete.

The irony of TIFF and load file productions is that it was a cutting edge technology before the turn of the century.  In my column, I explore that history, noting that, back when discovery denoted paper, TIFF imaging, optical character recognition, manual coding and load files imbued productions with a crude electronic searchability.

The coding and OCR text had to be stored in separate files because TIFF images are just pictures of pages, incapable of carrying added content.  So, in “single page TIFF” productions, each page of a document became an image file, another file held aggregate extracted OCR text and a third held the coded data about the data, i.e., its metadata.  The metadata would include information about the content and origin of the paper evidence along with the names and locations of the various image and files on the media (i.e., CD or DVD) used to transmit same.  Thus, adding a measure of searchability yielded a dozen or more electronic files to carry the pieces of a ten-page document.

To put Humpty Dumpty back together again demanded a database and picture viewer capable of correlating the extracted text to its respective page image and running word searches.  Thus was born a new category of document management software called “review platforms.”  Because the files holding OCR text and metadata were slated to be loaded onto a review platform, they were dubbed “load files.”

Then, as now, load files sucked; but, we put up with them because adding searchability to unsearchable paper documents was worth it.  A stone axe is better than no axe at all.

But today, electronic documents are inherently searchable.  They’re layered, multi-media and multi-dimensional.  Much ESI defies characterization as a document.

Replete with embedded formulae, appended comments, tracked changes and animated text, ESI thumbs its nose at the printed page.  Load files can’t begin to hold the myriad pieces and layers of information so as to faithfully mirror the efficiency, completeness or functionality of native evidence when reviewed using tools purpose-built for native review.  Yet, lawyers cling to TIFF imaging and load files, downgrading ESI’s inherent searchability and eviscerating the multi-dimensional character of ESI.  As I say in the column, “an obsolete technology that once made evidence easier to find now deep sixes probative content.”

But as frustrating as it is to dangle the rod of native production in front of a bunch of cats that see nothing but TIFFs and load files, there’s room for optimism.  Blakemore and Cooper’s kittens learned to see both verticals and horizontals when they entered the real world.  Inevitably, lawyers will come around to native productions; but until then, it’s just sad to watch them stumbling into table legs, little knowing what’s causing them so much pain.

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