The sophomoric title of this post strives to underscore the trial bar’s proclivity to self-abuse when it comes to the petulant insistence on Bates numbers embossed on each “page” of ESI produced in discovery. My previous post on native production began by referencing a famous psychology experiment. Comments to that post concerning Bates numbers prompted my recall of another famous psychology experiment, where McGill University’s James Olds and Peter Milner set up an apparatus electronically stimulating the pleasure (i.e., orgasm) center of rats’ brains. Given control of their stimulus, the rats began virtually tossing one off about 2,000 times an hour, ignoring food, water and hockey. This is why men must rest between orgasms; else, we would die of dehydration in adolescence.
The first comment on Bates numbers came from Mike McBride, who is an accomplished blogger and a veteran of years in IT and litigation support. Mike wrote:
“One of the real challenges in moving firms to native production is the Bates Label, so I’ll be interested in seeing how you deal with that. Discussions I’ve had about native production typically start and end with “how would I keep track of which document is which if it’s not labeled?” Unfortunately, that question exposes the larger issue behind it, namely that attorneys are still printing their documents and reviewing them in that format, even when they have a sophisticated tool available to them to do review. When you print out a copy of a document, removing all of the available metadata, the label becomes the only way to truly tie it back to its electronic version. Until we get them to stop printing, I’m afraid native production is still a step too far.”
Mike wisely notes that the TIFF wars often rage over Bates labels. Lawyers adore Bates labels. It comforts us to shrink all those documents we reluctantly hand over to our adversaries and emboss a number and cautionary message in their new margins. “ABC00123-PRODUCED SUBJECT TO PROTECTIVE ORDER,” they shout, but mean: “DON’T EVEN THINK about giving this to another plaintiffs’ lawyer because we know you greedy scum would violate the Court’s order in a New York minute but for this warning.”
Lawyers who revere Bates labelling as a citadel against violation of protective orders ignore the accomplishments of two inventors: Betty Nesmith Graham and Chester Carlson.
Late in the 1950’s, Dallas secretary, Bette Nesmith Graham, invented Liquid Paper in her kitchen blender. (She also ‘invented’ son Mike Nesmith, who would go on to fame as one of the four Monkees in the invented 1960s TV rock band of the same name). Were one so inclined, correction fluids like Liquid Paper make it child’s play to remove or alter Bates numbers.
Chester Carlson invented photocopiers (i.e., Xerox machines), so the magic that enables producing parties to shrink documents and emboss Bates labels makes it simple to mask those Bates labels and resize document to their true dimensions.
And don’t get me started on Photoshop and other image editing applications!
In short, Bates labels are an illusory safeguard against malfeasance—and have been since Eisenhower was President and Don and Betty Draper were a couple. Lawyers respect court orders because we value our licenses and reputations, not because some damned fool embosses a cautionary legend.
So, getting back to Mike’s comment that lawyers want Bates numbers to relate printouts to native source files, it couldn’t be simpler: you produce in native forms and simply emboss Bates numbers when the evidence is downgraded to paper or TIFF for use in proceedings. That is, you add Bates numbers only where and when they’re worth the trouble.
Here’s one way to skin that cat, excerpted from the exemplar production protocol made an appendix to my paper, Beyond Data About Data: The Litigator’s Guide to Metadata):
Unique Production Identifier (UPI)
a. Other than paper originals, images of paper documents and redacted ESI, no ESI produced in discovery need be converted to a paginated format nor embossed with a Bates number.
b. Each item of ESI (e.g., native file, document image or e-mail message) shall be identified by naming the item to correspond to a Unique Production Identifier according to the following protocol:
i. The first four (4) characters of the filename will reflect a unique alphanumeric designation identifying the party making production;
ii. The next nine (9) characters will be a unique, sequential numeric value assigned to the item by the producing party. This value shall be padded with leading zeroes as needed to preserve its length;
iii. The final five (5) characters are reserved to a sequence beginning with a dash (-) followed by a four digit number reflecting pagination of the item when printed to paper or embossed when converted to an image format for use in proceedings or when attached as exhibits to pleadings.
iv. By way of example, a Microsoft Word document produced by Acme in its native format might be named: ACME000000123.doc. Were the document printed out for use in deposition, page six of the printed item must be embossed with the unique identifier ACME000000123-0006.
The original name of the file is furnished in a load file, along with other relevant system metadata.
The logic behind this is simple. Parties tend to produce many more items in discovery than are used in proceedings (when the page-by-page identification function of Bates numbers is advantageous). So, the party who changes the form of evidence is obliged to tie the altered form to the original and append the pagination.
Those who object that this renaming is burdensome or expensive haven’t done their homework. Filenames have been used for decades as a means to assign Bates numbers. It’s standard operating procedure in TIFF and load file productions. As to cost, good tools to do the job cost nothing. An excellent free file renaming tool is Bulk Rename Utility, available at http://www.bulkrenameutility.co.uk. It allows you to add custom incrementing numbers and a protective legend like “Subject to Protective Order” in the name. And no, renaming a file this way does not alter its content, hash value or last modified date.
I make that last point because I lately saw an affidavit from a Director at a prominent national e-discovery consultancy where the muckety-muck swore that “adding bates number [sic] to the file name would alter the metadata file name, date and time last edited and other fields.”
Renaming a file absolutely does not alter its “date and time last edited.” To do so, you must open the file and save it, neither action being necessary to rename a file. Test it, if you have doubts.
Of course, the same affiant swore that an MD5 hash algorithm “counts all of the bits and bytes of an electronic file. The total number of bits and bytes is referred to the hash value.” [Sic]…and makes me sick. Like anyone who understands this stuff reasonably well, I think of the total number of bits and bytes as being the file’s size, not its MD5 hash.
Shall we chalk up this false swearing to “verbal masturbation,” in keeping with our theme? Fine, but beware. This sort of “say-it-irrespective-of-the-truth” strategy is straight out of the Case against Native playbook. Going native takes bread from the mouths of many riding the “TIFF It” gravy train. They won’t go down easy, and they don’t fight clean.
So, get hold of yourself, and master Bates numbers to insure litigants get all the satisfaction that comes from native production. If the sexually-tinged joshing in this post offends, please know that I’ve only ribbed for your pleasure.