How to Look Like a Rube in Three Easy Steps

How to Look Like a Rube in Three Easy Steps

Josh Gilliland and his always-entertaining “Bow Tie Law’s Blog” turn this week to the case of In re NetBank, Inc., 2009 U.S. Dist. LEXIS 69031 (N.D. Ga. Aug. 7, 2009), in which the producing party went to great lengths to prove to opposing counsel and the court that they knew absolutely NOTHING about e-Discovery.

The Defendants (the producing party) refused to produce native files, opting instead to produce TIFFs with OCR text (not extracted text, but OCR).  They claimed that:

1.  Native file production would promote alteration of the file contents (what, they never heard of MD5 hashing or maintaining a forensically-defensible authentication file?);

2.  Native file production would prohibit Bates numbering, and possibly software incompabilities (Bates numbering is not an issue if each file is uniquely named, and obtaining the proper software for review is the proponent’s problem, not the producer’s); and

3.  Performing OCR on the TIFFed files was the only way to make them searchable (ignoring, of course, the simple fact that native files are themselves searchable, with much higher accuracy than OCR).

The Court ordered the production of native files, because the Producing Party gave “no good reason why they should not produce…in native format.”  In re NetBank, Inc., 74-75.

Josh does not report whether the judge then snickered at the Defendants in open court. 

I write with a somewhat flip attitude about this, but the simple truth is that ESI production is now part-and-parcel of a litigator’s daily practice.  If attorneys cannot find the time to learn about the basics of e-Discovery, it is well worth the expense for them to retain someone who knows those basics.  It would certainly save them the embarassment that counsel here brought upon themselves.

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