Author: Helen GeibBest PracticesEDRM

Specify Production Format Upfront or Pay the Cost Later

Production format image

All stages of the eDiscovery lifecycle blend law and technology to varying degrees. While the production stage falls the farthest on the technology end of the spectrum, it’s not exclusively technical. It also involves significant legal issues and cost considerations.

Lawyers have a critical part to play in successful ESI production. Their primary responsibility is to negotiate a favorable form of production at the start of the case. Form of production – also referred to as production specifications or production format – applies equally to plaintiff and defendant. Getting form of production wrong is likely to result in an incomplete production and cost overruns.


Key considerations in production format

The two main considerations when producing your client’s ESI are technical feasibility and cost.

Feasibility and cost-effectiveness are partly determined by the capabilities of your eDiscovery platform (e.g., Relativity, Viewpoint). Another important, and closely related, factor is the types of ESI in the client’s data. For example, common data types like PDFs, Excel files and text messages are all handled differently during production.

Your eDiscovery service provider or litigation support staff is an indispensable resource on form of production. They can provide standard language and review proposed specifications to flag technical issues. You never want to agree to a production format that isn’t supported by your eDiscovery platform.

Opposing party and non-party productions likewise present both technical and cost considerations. The fundamental technical requirement is eDiscovery platform compatibility. If the opposing or non-party production can’t be loaded into your platform as-is, your service provider will have to reformat it first. Reformatting incurs additional – and entirely avoidable – expense. Potentially even more serious, it delays the start of your review while you wait for the production to be reformatted and loaded.


File conversion and production best practices

It’s industry-standard practice to convert email and most electronic documents (e.g., Microsoft Office files) to image file types like PDF or TIFF for production. This is done so the production images can be endorsed with bates-numbers and confidentiality labels. The downside of file conversion is that it strips out other information found in the original file like metadata and searchable text.

In response, production best practices have developed over time that address this issue. First, to the extent they exist in the original file, metadata and searchable text are produced alongside the production image. Second, file types that simply aren’t suitable for conversion (e.g., Excel, audio, video) are produced in native file format. Native file format is production terminology that means the original file type.


Decoding production format terminology

Specifying the right format up-front will forestall most production-related problems. Litigators need to be conversant with a few basic terms to have effective discussions with opposing counsel about production format.

QDiscovery has created a production specifications template to assist clients in requesting and negotiating form of production. It covers electronic documents, scanned paper, databases, mobile device data and secure data transfer.

This excerpt from QDiscovery’s production specifications template applies to email and electronic documents. It includes several of the basic terms, which I define below.

Single page tiff endorsed with bates-numbers and confidentiality labels; document level text1; delimited data file including the fields listed below2; load file3. …Additional native file production of: Excel; PowerPoint; multimedia; any other file type or individual file that cannot be adequately produced except in native format.

1Document level text – When a searchable electronic document is converted to an image file for production it is rendered non-searchable. Document level text is a request for searchable text to be extracted from the original native file and saved as a new text file. The new text file is linked to the associated image file. If searchable text is not produced, the requesting party will have to re-create it electronically using the production image. This is a prime example of avoidable costs from re-formatting.

2Delimited data file with field list – Like document level text, metadata must be extracted from the original electronic documents and produced in conjunction with the production images. The delimited data file is the standard means of producing metadata. A few of the data file fields contain technical information about the production itself; for instance, the link between production image and document level text file.

3Load file – The load file is needed to correctly load the production data into the eDiscovery review platform. Ask your service provider for the load file requirements for your platform.


Scanned paper and some ESI types require special production formats

Scanned paper files are a common problem area in opposing party productions. The production specifications should require that scanned paper be logically unitized. Logical unitization means that each document is scanned as a single TIFF or PDF image. This requirement prevents questionable tactics like producing hundreds of documents from a file drawer as a single production image.

Paying your service provider to logically unitize the opposing party’s paper production is yet another avoidable expense. Moreover, there’s some degree of guesswork involved in unitizing someone else’s files.

Some types of ESI also require a source-specific form of production for technical reasons. The main types are databases, mobile device data and social media data. If your case involves one of these sources, consult with your eDiscovery service provider about the optimal form of production. This will typically be some type of report or forensic image file generated during the ESI collection.

Production perfectly illustrates eDiscovery’s hybrid nature. It’s a technical process yet it has significant legal and cost implications. Although production is a late stage process, production format is decided by lawyers in the early phase of discovery. To be effective negotiators and legal advocates, litigators must be familiar with the technical basics and terminology of production.



Helen Geib is General Counsel for QDiscovery. Her deep knowledge of eDiscovery law and practice was gained over many years of experience, first as a litigator in an Am Law 100 firm and subsequently as an eDiscovery consultant. Helen has published numerous articles on topics in eDiscovery and legal technology. She is a member of the bar of the State of Indiana and the US District Court for the Southern District of Indiana and a registered patent attorney. She serves as chapter director of the Women in eDiscovery Indianapolis chapter, which she launched in 2017.


This post is for general informational and educational purposes only. It is not intended as legal advice or to substitute for legal counsel, and does not create an attorney-client privilege.



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