Most of the e-discovery headlines are usually taken by the latest advancement in technology-assisted review, a new social media processing capability, or some glitzy visual way to display data. To be sure, these are all great ways to bring e-discovery tech to the next level.
However, some updates that seem considerably less sexy are arguably more useful in tackling the day-to-day challenges faced by those who work in e-discovery.
A Common Headache for Australian Legal Teams
The Australian courts have taken a hard line that every document should only have one identifier assigned to it, from the get-go, through its entire life. This is in significant contrast to American and European methodologies, which typically involve initially assigning temporary, internal IDs, followed by the assignment of a Bates number at production.
Having moved to Australia from the US in 2009, I can’t promote enough the wisdom of the court in this regard. Having two IDs for the same document creates a myriad of problems, including:
- A ton of cross-reference work for every step in a project, adding time and cost and introducing more opportunities for human error
- Total mismatch of metadata
- Breaking of family host/attachment relationships
- A real risk of producing the wrong documents altogether
Put simply, the standard Australian stamping format is to assign an ID during processing and then increment it up by one numeral for each page. As it requires a complete page count for each document, all documents must be converted into PDFs up front, before any real review can begin, since document IDs cannot be assigned until a page count can be determined.
For example, if the first document processed has two pages, the document will be referred to as ABC.001.001.0001, with page 1 getting a stamp ABC.001.001.0001, page 2 will have ABC.001.001.0002. The second document will be referred to as ABC.001.001.0003, and each page will be stamped incrementally by one and so on. I am going to refer to this type of stamping as “historic stamping.”
The main pain point to the historic stamping method is that it doesn’t work well from a workflow perspective with large electronic document sets. Over the past 10 years, electronic documents have become the norm for the vast majority of litigation. It is common to process 10,000, 100,000, or a million electronic document initially, with only a slim number being required for production.
Unfortunately, if we stick with historic stamping and the practice note directive of one lifetime ID, we would need to PDF all documents before review can begin. Typically, we’re working against a tight discovery deadline, and delaying the review by days or a week to PDF everything (and incur a significant cost) doesn’t go down well with anyone.
Proposing a Practical Solution
But there is hope for greater efficiency, in what I will label as “underscore stamping.”
Technically speaking, it’s a fairly straightforward workflow: every document gets assigned an ID as soon as it is processed, so for example that same first document will be referred to as ABC.001.001.0001, the second document will be referred to as ABC.001.001.0002, and so on. These documents will initially be left in native format and can be reviewed as such. Later, if one or both of them needs to be discovered, page 1 of the first document will be stamped as ABC.001.001.0001, page 2 stamped as ABC.001.001.0001_0002, page 3 stamped as ABC.001.001.0001_0003, and so on.
The first time I saw a law firm really embracing this kind of standard was about five years ago, when one of the top-tier firms in our community first brought on Relativity. They were proposing using it on electronic and hardcopy documents, which I thought, at the time, was bold.
I’ve since learned, though, that there are a number of advantages to underscore stamping:
- It allows native review to occur while still maintaining one document ID for the life of a document—a major driver.
- Underscore page stamping mimics a page number, which is useful for the legal team and counsel when referring to pages within a document. Everyone easily understands the concept of a page number.
- Hyperlinking page reference errors are easy to spot and correct, saving significant time and cost.
- Hardcopy underscore document stamping is performed post scanning with minimal issues. The only complication I could see here is if physical labels are being applied—and that practice seems to have fallen out of fashion. Even if it is still required, you could have hard copies with historic stamping and electronic documents with underscore on the same matter without issue.
- Matters where some parties stamp underscore and some historic do not cause problems.
- Federal court and state protocols allow for underscore document stamping. The protocols foresaw the need to insert pages into hard copy documents and describe the underscore method. Effectively, we’re simply inserting pages for electronic documents.
At Sky Discovery, our team has been using underscore stamping as our standard on over 90 percent of our matters without any issues in the last four years. It’s saved our clients and our staff countless hours of work, and countless complications.