Production of documents in their “native file format” is gaining traction in litigation. But, what exactly is a native file? And why should I care about it?
Native format is the file structure of an electronic document as defined by the application that created that electronic document.
So, for example, if a spreadsheet was created using Microsoft Excel, then that document’s native format is its original Excel format (.xls). Insofar as litigation is concerned, when producing documents, the producing party has to consider whether to produce a responsive document in its native format (the .xls) or to convert the document to another electronic format (i.e., PDF). The format (i.e., native or something other) is something that should be carefully considered for a number or reasons. First, the format in which a document is produced can affect the costs of production. Second, the format in which a document is produced can affect the utility of the document itself. Finally, the format in which a document is produced can affect one’s ability to redact the document (or inadvertently modify the document).
Consider a Microsoft Excel document. First, producing the document in Excel format is less costly in that one does not need to convert the document to a .tiff or .PDF. Similarly, the producing party does not need to expend the money (albeit minimal) in branding the native file with confidentiality legends or bates stamps. Thus, production in a native file format can be more cost efficient. Additionally, an Excel document can often have embedded formulas (or at least allow the end user to embed formulas to make the document more user-friendly). These features are lost when the document is converted to another electronic format prior to production. If the document is converted prior to production, the receiving party may be at a disadvantage should they have desired to “slice and dice” the data in the spreadsheet, for example. Finally, what if the .xls spreadsheet needs to be redacted? Redacting the native file can be quite difficult. For example, a native file Excel spreadsheet may have multiple worksheets, formulas, pivot tables and macros. Thus it can become a very complex process as each change can trigger a number of unforeseen additional changes in different parts of the worksheet. Moreover, redacting the native file would, by definition, cause the file data and metadata of that file to be changed. Therefore, counsel would need to track the redacted version alongside the clean version of the native file. Quite the undertaking! Consequently, a common compromise is to produce an .xls that requires redaction in a PDF format.
There are numerous arguments for and against native file productions. The main benefit of a native production is that the electronic evidence can be produced without degradation. That said, it is critical to assess the potential benefits and drawbacks of a native production on a case by case basis before committing to a production format.