Native Redactions – An Emerging Trend

It is a commonly accepted practice within the eDiscovery industry to image documents for production.  Likewise, it is now a commonly accepted practice, and indeed even a preferred practice, to exempt spreadsheets (and some other file types) from that requirement, instead producing those documents natively.  The idea being that parties would rather obtain native spreadsheets allowing them to work with and view the content in a meaningful manner rather than receive spreadsheet images that can be useless, cumbersome, or exceedingly difficult to accurately use and understand.  There is a nascent trend of not only producing spreadsheets in native format, but redacting them in native format as well (the concept has existed for years but is becoming an increasing point of emphasis as of late).  

The inherent nature of a spreadsheet means that it often contains complex data located in multiple rows, columns, and tabs. The data often includes or involves the use of formulas, sorting, or filtering amongst other features.  Macros, pivot tables, and hidden content add to the complexity.  If printed, the data often falls across multiple pages in a less than complete and less than orderly manner resulting in a confusing mess that is difficult to cobble together, let alone read and use.  The fact of the matter is that images simply are unable to capture the complexities many spreadsheets contain, so if the document and its content are to be useful and meaningful, you must produce them natively.  Most litigants now recognize this and are comfortable with, and often require, the native production of spreadsheets.  Yet, traditionally they have been less than enthusiastic about redacting spreadsheets in native format. 

Given that it is an accepted practice to produce spreadsheets natively, because that is how they will be most useful, why should redactions change that?  The answer is that it should not, and more and more practitioners are beginning to realize this.  Redacting changes the data in the spreadsheet, but it does not change the nature of the spreadsheet, the functionality of it, or how one uses the spreadsheet.  If a spreadsheets needs to be produced natively to be useful in its non-redacted original state, then logically it should be produced natively to be useful in a redacted state.

Anecdotally speaking, as time goes on, I am seeing much more acceptance and understanding of the native redaction practice across the industry.  My colleagues are telling me that they are seeing the same thing.   I am confident that it is only a matter of time before redacting spreadsheets in native format is the norm and an accepted standard and practice by courts and litigants alike; native redactions simply make the most sense for spreadsheets.

One of the hang-ups for those who are unfamiliar with native redactions lays in the subconscious or gut feeling associated with making redactions to a native document.  Redacting (i.e. deleting) content from native format documents that you are producing somehow feels inherently wrong, as if there is somehow a difference between covering up the data in an image redaction and deleting it in a native redaction.  In reality, and despite this feeling, if done properly, there is no meaningful difference between image and native redactions, or between covering up and deleting.  With each method, you are hiding data in an attempt to ensure the opposing party does not see it.  Whether the data is hidden beneath a box or darkened out area on an image, or deleted from a native document, the goal and result (hopefully) is the same: the data is not visible or searchable.  As long as you redact properly, and are open and honest with the opposing part about what type of redactions you are making, why, and how, there should be very little issue when redacting spreadsheets natively rather than via image.

Of course there are risks with native redactions, and native productions in general, including the loss of metadata, loss of formulas, changing dependencies (e.g. cell values based on formulas or the values in other cells) and the risk of manipulation by the opposing party to name a few.  However, there are methods and mechanisms for addressing these risks, and you can, and should, discuss them with your eDiscovery experts and the opposing party, before taking action.

However, from a strictly results perspective, if done properly there is no reason why the native redaction of spreadsheets should not be acceptable.  This argument carries even more weight if the parties are producing non-redacted spreadsheets natively; in that instance the parties identified value in producing non-redacting spreadsheets natively, and that same value would exist for redacted spreadsheets.  Driven by this logic and the comfort that will come as litigants gain familiarity with native redactions, more and more parties will turn to native redactions for documents like spreadsheets.  In the not so distant future, natively redacting spreadsheets will be a commonly accepted practice and standard in the eDiscovery industry.

Plan on Planning – Help Your eDiscovery Personnel Help You

I had lunch with an eDiscovery colleague last week and he related to me a recent case he worked on. A few weeks ago, his client informed him that they had agreed with opposing party to make a production in four days. The client did not have a production population determined, and they had no idea how long it would take to create and run a production before they agreed to the deadline with opposing counsel; they picked a date in no way related to the reality that was their data set. None of this had an effect on their expectations for the viability of the project of course. The result? A rush project, extra people working extra hours to get the job done, tension, and having to renegotiate a new deadline with the opposing party because the date was simply unrealistic given the amount of data eventually involved. Ideal? No. Fun? No. Avoidable? Yes.

The above story exemplifies (although perhaps somewhat to the extreme) the experience eDiscovery personnel (whether in-house, outside counsel, or vendor) have with far too many clients in far too many cases. eDiscovery personnel are often left out of the decision-making process and have to scramble to meet artificially created deadlines that have little or no bearing to the work. We all have deadlines beyond our control, so eDiscovery personnel are no different than most in that regard, however, what can be exasperating for eDiscovery personnel, is that in the case of eDiscovery, the deadlines need not necessarily be so tight and out of our or control, or at least knowledge.

To avoid such rush projects, unobtainable deadlines, and wasted time and money, counsel should plan ahead for eDiscovery and include their eDiscovery personnel in that process, as well as in the negotiation of deadlines, to the extent possible (even if just as a point of reference and knowledge). Some easy things you can do to help your eDiscovery personnel better meet your needs, include:

• Create an eDiscovery Plan ASAP – Ideally you would create this before the case begins or soon thereafter. Be sure to include your eDiscovery personnel in this planning so that they can assist with properly setting eDiscovery related deadlines and expectations.

• Leverage Your eDiscovery Personnel’s Expertise – A classic example would be engaging them for search term analysis before agreeing to terms with the opposing party and before you make any productions. Provide the terms to your eDiscovery personnel for testing and sampling, leveraging their ability to write searches and manipulate review platforms. Via such exercises, they can sample documents testing for precision and recall, with the ultimate goal being to create a data set that is defensible and proportionate to the value of the case.

• Do Not Agree to eDiscovery Deadlines Before You Know What the Job Will Entail and Without Input from Your eDiscovery Personnel About How and If It Can Be Done – I-Med Pharma, Inc. v. Biomatrix, Civ. No 03-3677 (DRD), (D.N.J. 2011) is a great of example of why you need to know what the task entails before agreeing. The plaintiff’s in the matter agreed to search terms without testing them and without the advice of their eDiscovery personnel. The terms generated over 64 million hits and 95 million pages, unreal (and expensive) numbers.

• Build in Extra Time and Do Not Wait Until the Last Minute – The only thing worse than trying to complete a complex and important project precisely and accurately, is doing so with little notice and no time for mistakes. By engaging your eDiscovery personnel early in a matter, you not only put them on notice, but it will help them help you obtain the knowledge you need to negotiate and enter into reasonable deadlines and tasks with plenty of time.

You may be asking Why should I do all this, after all, are not my eDiscovery personnel paid to work for me? The answer is, aside from making your eDiscovery personnel happier and more motivated, it will also improve your case; you will have more time to do a better job and implement quality control measures, the court and opposing party will appreciate that you can deliver on what you promise, and by planning ahead, you can create cost saving efficiencies and avoid increased fees for rushed projects.