SCIENCE AND TECHNOLOGY LAW
Using Native Files in Legal Proceedings

By Ryan W. Koppelman

During discovery, parties in litigation commonly produce electronic versions of e-mails, databases, and Microsoft Word and Excel documents. These so-called native files (“natives”) may be produced instead of, or in addition to, paper documents or other electronic versions such as TIFF (Tagged Image File Format) or PDF (Portable Document Format) files. This article discusses common problems and offers possible solutions for using natives in depositions, hearings, and trials.

Printing natives. Unlike paper, TIFF, or PDF versions, natives when printed may lack Bates numbers or confidentiality designations branded on the face of the documents. So it is not readily apparent from the face of a printed native whether it was ever produced in the litigation or whether it is subject to any agreed-upon protective order. In some cases, any such numbers or designations are contained in a load file, which associates this type of information with each native file produced. A load file allows the natives to be loaded into a litigation database together with their associated data, which in turn permits the printing of a cover sheet for each native file indicating its Bates number and confidentiality designation.

However, natives are often produced without a load file. Instead they are produced on a hard drive or laptop with files in folders, as they are kept in the ordinary course of business. Such a production can happen in one of two ways. The producing party may produce the original hard drive or laptop for inspection or analysis, in which case chain of custody issues predominate. Alternatively, the producing party may copy relevant selected files as they are kept on a hard drive, CD, or DVD.

In the first scenario, the parties need to negotiate how to indicate reliably that any extracted natives have been (1) produced in the litigation and (2) designated under the protective order. In the second scenario, there is somewhat less concern with altering certain aspects of a native file, which may allow for the insertion of a Bates number and confidentiality designation in the file name.

File renaming without a vendor. Recently, I implemented without a vendor the procedure below to rename files and produce several gigabytes of native files.

The native files were copied with their original file structure intact. I used an off-the-shelf software program to create an index of every file and its folder structure. The copies were reviewed natively outside a litigation database. Irrelevant and nonresponsive documents were removed. We searched logged privileged documents and third-party confidential documents with the existing search functionality in the Windows operating system. We used an off-the-shelf file application that easily renamed our files to insert Bates numbers and confidentiality designations in the file names themselves.

Printing natives with automatic fields. When printing natives, automatically updated fields can cause problems. For example, Microsoft Word and Excel documents sometimes have a date field in a footer or header that displays the current date. Therefore, printing the document reveals the day it was printed, which can be misleading.

To avoid this problem in Microsoft Word, the print menu options can be changed. If the Update Fields option is unchecked and the Field Codes option is checked in the Print Options menu, then the document will print showing the date field code ({DATE\@“M/d/yyyy”}) instead of the date printed.

Computer display versus printing. A computer should be considered for displaying certain documents during a deposition, hearing, or trial. When considering a computer to display a native file, there are two threshold questions: (1) whether the proceeding will address the document’s content or functionality, and (2) whether these attributes are static or dynamic.

A Microsoft Excel document is a good example because it can have either static or dynamic content and functionality. When an Excel spreadsheet contains simple data or information, the content is static. These spreadsheets are good candidates for printing as exhibits. The same is true for most Microsoft Word documents and e-mail. In contrast, an Excel spreadsheet can pull content from other sources by pointing to websites, databases, or other spreadsheets. In that case, the content is susceptible to changes.

In the end, the primary inquiry comes down to whether the relevant portions of the document are static or dynamic, and whether printing will convert a dynamic portion to a static one, thereby losing relevant information. Dynamic exhibits may be better displayed on a computer.

Displaying natives in court on a computer. In a hearing or trial, a projector that displays a dynamic document is not significantly different from a static exhibit. However, the lack of a paper version will lessen the likelihood that the exhibit will go with the jury for its deliberation. The exhibit will likely be admitted into evidence in the form of a CD or DVD with the digital evidence on the disc.

In order to work properly in court, the native file needs the correct software loaded on the computer that displays the file. Having the correct software is not a concern if the file opens natively with common software such as Microsoft Word or Excel, but it could be a problem if it is a less common database file format or something exotic. Accordingly, it is critical to test the native file with the software ahead of time.

The most effective display in court of the dynamic aspects of a native file may be a PowerPoint presentation file shown as a demonstrative exhibit. One can sequence multiple screen captures that show the “before” and “after” results of the relevant functional features. One can also embed an animation or recorded WebEx session (see below) into the PowerPoint slides.

Displaying natives on a computer in depositions. Displaying native files on a computer in a deposition has its own issues. Typically, exhibits become part of the deposition record. Again, the native file will likely be an exhibit in the form of a CD or DVD with the native file on the disc. However, if the purpose of the deposition is to capture testimony about the dynamic aspects of the document, the mere display of the document on a screen during the deposition may not suffice.

Instead, consider WebEx or some other sharing software. These programs allow people in different places to look at the same computer screen and are often used to demonstrate software. One helpful feature of these programs is that they save what happens on the computer screen for playback at a later time. In the deposition context, this allows synchronizing testimony with a recorded native file. This procedure can elicit clearer testimony about the document by matching testimony to the dynamic aspects of the native file.

Furthermore, a recorded WebEx session can be combined with split-screen video testimony for cross-examination. In instances in which the functionality of the document is at issue, this may be the best way to capture testimony.


  • Ryan W. Koppelman practices with Alston & Bird LLP in Atlanta, Georgia, and is a member of the ABA Committee on E-Discovery and Digital Evidence; he may be reached at ryan.koppelman@alston.com.

    Copyright 2010

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