Native Files and Protective Orders

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01Aug2014

Native Files and Protective Orders

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By Joshua Gilliland

confidentialWhat do parties do when they anticipate documents, testimony, or information containing or reflecting confidential, proprietary, trade secret, and/or commercially sensitive information are likely to be disclosed or produced during the course of discovery, initial disclosures, and supplemental disclosures in a case? Agreeing to a protective order is a the solution the parties sought in Farstone Tech., Inc., v. Apple, Inc.

The protective order stated the following on native files:

Where electronic files and documents are produced in native electronic format, such electronic files and documents shall be designated for protection under this Order by appending to the file names or designator’s information indicating whether the file contains “CONFIDENTIAL,” “CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY – SOURCE CODE,” material, or shall use any other reasonable method for so designating Protected Materials produced in electronic format. When electronic files or documents are printed for use at deposition, in a court proceeding, or for provision in printed form to an expert or consultant pre-approved pursuant to paragraph 12, the party printing the electronic files or documents shall affix a legend to the printed document corresponding to the designation of the Designating Party and including the production number and designation associated with the native file. No one shall seek to use in this litigation a .tiff, .pdf or other image format version of a document produced in native file format without first (1) providing a copy of the image format version to the Producing Party so that the Producing Party can review the image to ensure that no information has been altered, and (2) obtaining the consent of the Producing Party, which consent shall not be unreasonably withheld.

Farstone Tech., Inc., v. Apple, Inc., 2014 U.S. Dist. LEXIS 89604, 10-12 (C.D. Cal. June 24, 2014).

The section of depositions demonstrated a lot of forethought on behalf of the attorneys who prepared the stipulated protective order (or Judge) with the party printing the electronic files or documents shall affix a legend to the printed document corresponding to the designation of the Designating Party and including the production number and designation associated with the native file. The only way this could be stronger would be the legend also including a MD5 hash value for authentication (which it potentially would include) and the system file pathway.

The final sentence on allowing review of a static image to the opposing side for review also addresses a concern many attorneys have over native files converted to static images. There is the obvious method of reading the document to determine it is “identical,” but using near-de-duplication technology to verify the text is an exact match, assuming the static image is a searchable PDF. If it is a TIFF, then conducting a line-by-line comparison is the best option.

My compliments to the attorneys who drafted the stipulated protective. I hope the litigation avoids any discovery disputes and focuses on the merits.

About the Author

Joshua Gilliland, Esq., is a blogger for Bow Tie Law, one of the two attorney bloggers for The Legal Geeks, Litigation World columnist, and founder of Majority Opinion LLC.

Mr. Gilliland is a California attorney and nationally recognized thought leader on electronic discovery with his blog “Bow Tie Law.”  Josh has conducted over 350 Continuing Legal Education seminars on e-Discovery from Anchorage to St. Thomas.

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