Another Reason Why You Shouldn't Play Games When Producing Documents

An interesting article in Law Technology News and Law.Com highlights the pitfalls of producing or receiving spreadsheets in TIFF format,  particularly if they have redactions.  It brings home why you shouldn't play games when producing documents.

In a nutshell, there are risks that if the redacted version is TIFFed first, redacted and then OCRed the ending document may contain numerical errors among other things.  In addition there appears to be serious risks to both sides if a spreadsheet is TIFFed in the first instance.  TIFFing removes the formulas behind every spreadsheet, exposing the producing party  to non-production and destruction of evidence claims if those formulas turn out to be relevant.  In turn, the party receiving a TIFFed spreadsheet should at least be aware that the copying of the document into a TIFF removes potentially valuable information. Click here to read entire article.

THIS ARTICLE REAFFIRMS YET AGAIN, RULE NO. 1, WHEN PRODUCING DOCUMENTS - DON'T PLAY GAMES.  It is beyond me why anyone would want to redact a spreadsheet.  The odds of a contemporaneously prepared spreadsheet containing privileged information is remote to nil.  Thus, the only reason to redact a spreadsheet in the first instance would be to remove information on "relevancy" grounds. 

Removing or withholding information from production based upon "relevancy" grounds is always a dicey proposition - particularly since each case is a dynamic ever changing event.

Here are some simple but elegant rules to follow:

(1) If a document contains potentially relevant information - produce it. 

(2) Redact or withhold only privileged information - be judicious and - most important - have a protective order entered that provides for the return of any privileged material produced [regardless of whether production was inadvertent or not][this should be SOP];

(3)  Don't redact or withhold on relevancy grounds - it is a dangerous metaphysical exercise for experienced trial lawyers and from my experience it is usually performed by young associates who - to say the  least - don't always have a "world" view. So, unless lightening strikes and the information deemed not relevant is information that could be damaging to your client for some reason not related to the case [very unlikely] don't redact on relevancy grounds.

P.S.  All of this saves bundles in litigation costs.