RIP PDFs: The Not-So Slow Death of a Document Giant
Posted: March 24, 2014
Gone are the days of bankers boxes full of reams of paper, passed from one firm to the next as the sole method of producing documents in litigation; it’s long since been established that eDiscovery is here to stay. But, as discovery technology develops at a torrid pace, so too does the format of document productions in discovery. This may come as a surprise to some who have only recently grown accustomed to discovery exchanges of CDs chock full of PDFs, but PDF technology, like the bankers boxes of paper, is going the way of the fax machine.
The Sedona Conference defines a PDF (.pdf) as a “file format technology developed by Adobe Systems to facilitate the exchange of documents between platforms regardless of originating application by preserving the format and content.” “PDF” literally stands for “Portable Document Format” and converting files from their original native format (e.g., Microsoft Word) into a PDF has been widely accepted as a simple and convenient way to send and share static images of electronic files from a variety of applications. Sounds pretty convenient, right? Yes, but, as always, there’s a “but.” PDFs are convenient and useful in many contexts, BUT not as convenient in the context of eDiscovery.
Why? Because a PDF fails to capture information available in the original format of the document, including basic metadata such as file names, or email header fields. Today, the most common format of production of large volumes of ESI is often a static TIFF (Tagged Image File Format) with a load file that provides metadata, allowing documents to be searched (using a litigation review platform) and used like they would be in the normal course of business. Certain documents (e.g., Excel spreadsheets, audio files, etc.) may warrant other formats of production, but the TIFF/extracted metadata in a load file combo is a go-to for most practitioners managing the large volumes of ESI commonly being produced these days, even in the smallest of matters.
So what prompted the shift? The sheer size and complexity of data exchange has gotten so big that, in order to perform their due diligence and examine files in their “closest to normal” format, attorneys need data to be produced in a way that gives them the full “scoop” of what happened in the document. Enter: databases. Document review databases allow for multiple document types to be organized, searched, and reviewed in one medium, helping facilitate, organize, and ease the overall burden of large electronic productions, and leading the way to pushing PDFs out the door.
Attorneys can now use databases such as Relativity and Concordance to examine all aspects of a document in one place: seamlessly moving from scrutinizing track changes in a word document to comparing forwarded versions of an email all in the same viewer. In addition to the searchability advantages mentioned above, the new “standard format” has PDF-like features, mostly allowing for static images to be produced in a way that allows lawyers to brandish produced documents with confidentiality designations and bates labels. And for those files that don’t translate to the “standard format” well, the new normal is a TIFF placeholder that points the receiving party to the native format document (which, of course, can also be viewed in a document review database).
And thus, PDFs now find themselves out of favor not only in the opinion of most attorneys and eDiscovery vendors, but also in the courts. Take Branhaven, LLC v. Beeftek, Inc., for instance, where the U.S. District Court for the District of Maryland ruled that where documents had been requested in a database friendly .tiff format but were produced in a PDF format, the PDF production was “contrary to customary and reasonable practice especially in voluminous productions and further complicated defendants’ review of the documents, causing further expense and delay.” Moreover, the court found that PDFs were “not reasonably usable” and ultimately sanctioned the party that produced the PDF files.
In Crissen v. Gupta the Southern District of Indiana found similarly, stating that, when a party converted Microsoft Word documents to PDFs, the “requesting party’s obligation to specify a format for production is superseded by a responding party’s obligation to refrain from converting any of its electronically stored information to a different format that would make it more difficult or burdensome for the requesting party to use.” Perhaps unsurprisingly, the U.S. District Court for the District of Nebraska found in Home Instead, Inc. v. Florance that the similar PDF-ing of a bundle of printed out documents to be insufficient when clearly the documents were printed from their native form. .
Notwithstanding, while PDFs are dead by most courts’ estimations, they’re still letting out one last death rattle as a few lingering federal courts have yet to fully embrace the TIFF/native file/metadata movement. The District Court for the Eastern District of North Carolina, for example, recently held in Westdale Recap Props., Ltd. v. NP/I&G Wakefield Commons, L.L.C. that “production in the form of searchable PDF’s is sufficient” as “plaintiffs [had] not… demonstrated an adequate need to have all the ESI produced in native format.”
Death rattle or not, the trend is clear: PDFs are yesterday’s news. But is there a clear successor? Will the new “standard format” last at least as long as their bankers box grandfathers? Or will a push toward totally native format productions prevail? Native format is less expensive, but lawyers will have to get comfortable with a lack of image-ready branding. These questions, and many more relating to eDiscovery, remain unanswered for now. However, as the amount of documents in an ever growing variety of formats exponentially increases, attorneys must strive to stay abreast of developments not only in eDiscovery, but also in the technology that is driving the change. After all, who knows what will happen next?