PDF for Lawyers

The disadvantages of locked PDFs

One thing that makes PDFs superior to TIFFs as a format for storing digital documents is PDFs ability to incorporate security features.  Many lawyers aren't aware of the full features of Adobe Acrobat.  Of course, you password protect a document so that it can't be opened, but that's not something you're likely to do if you produce PDFs as part of the discovery process.  However, did you know that you can also lock down particular features and prevent the user of a PDF from printing?  And you can also prevent the user from 'copying and pasting.'   

If you are thinking that this would be a great thing to do when producing documents in litigation, think again.  The Federal Rules of Civil Procedure (and many state rules) specify that documents must be produced in native form, or 'in a reasonably usable form' (which means a searchable form).  So producing 'locked down' PDFs is probably not a good idea.

The defendants in Mack v. HH Gregg, Inc. found this out the hard way as the excellent discussion in this blog post reveals. Now, there are legitimate reasons you'd want to lock down a PDF that wouldn't impair the other sides legitimate use of the PDFs.  For example, what if you want to lock down the Bates-numbers that you imposed on the PDFs that you're producing and nothing else?  If you want to do that check out this article from the wonderful blog Acrobat for Legal Professionals.

Deposition notices = junk mail?

Recently, it was revealed that the carbon footprint of junk mail is equivalent to 480,000 cars.  I reflected on this dispiriting fact while opening my office mail the other day.  Especially the bulging envelope with two deposition notices.  While there are steps you can take to reduce the volume of junk mail you receive it's hard for a devotee of paperless like me to ward of paper deposition notices.  Still, it is kind of ridiculous when you think about it.

The case that spawned the offending paper is based in federal court, which means that the notices aren't even filed in the court.  If they were required to be filed, they would have to be filed in electronic format and the service would be accomplished electronically.  If only lawyers knew how to scan print the documents to PDF and send them by email!

Well, actually, they should!  Again, because we're talking about a federal court case the lawyers are converting their pleadings to PDF when they file electronically.  So why aren't they sending the notices as PDF attachments to an email? Probably because they don't think the rules allow for it.  So, how about we amend the rules?  

But before we go off on a discussion about that, how about this idea:  How about if attorneys in federal court cases agree from the inception of a case that they'll accept service of deposition notices by email?  Or --better yet-- how about if we send the notices as calendar appointments which can quickly 'accepted' and moved into an electronic calendar?  Doesn't this make perfect sense?

I'll bet that it does to some attorneys, and not so much to many others.  Those that have monthly billing quotas are probably snorting at the mere suggestion of these notions.

How to bates-stamp using Acrobat

If you have the full version of Acrobat then bates-stamping documents is fast and easy.  The first time you do it you may be a little overwhelmed, but it's really not that hard.  First, you don't even have to have the documents you want to bates stamp open.  So, to make it easy I've created a PDF tutorial that you can download and view.  After you view it you'll know exactly what to do.  So here is the link  (Windows tutorial), but Mac is basically the same process).

Producing paper copies of emails - Warning!

The new Federal Rules deal with how 'electronically stored information' must be produced. Emails are the quintessential example of ESI. A recent decision from a Kansas federal court dealt with a plaintiff's complaint about document production in an employment dispute. The plaintiff requested emails, but did not specify the form of production. The defendant produced the relevant emails in paper form, after having them converted to PDFs. The magistrate ruled that this was impermissible and ordered the emails to be produced again in 'native format.'

Let me repeat a key point: the plaintiff did not specify what format she wanted the the email production to be in. And this didn't matter. Why?

Because the new rules say that, if the requesting party doesn't specify the form, then it must be produced in either (1) native format, or (2) "a reasonably usable form." The federal magistrate found that converting the emails to paper was not production in "a reasonably usable form." In doing so, there was some discussion about how paper can't be searched in the way an electronic file can be searched:

"[i]f the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature."

This begs the (unanswerable) question: would the result have been different if the defendant had produced text searchable PDFs?

After close reading of the case, I would argue that it well might have. The only reason to prefer the 'native format' of the emails would be to examine metadata, which in most cases isn't really all that useful. The judge didn't mention metadata and I get the sense that the plaintiff didn't make that argument (perhaps because she had a better argument). In any case, it's safe to say that if you are asked for emails in a federal court case you should be wary of producing paper copies. If you do, and plaintiff complains, then you might be required to produce the emails again in native format.

Producing documents is always frustrating. But having to do it twice for the same request is supremely frustrating. So, if you want to produce emails in other than native format, you should—at a minimum—produce text searchable PDFs.

(More coverage of the White case here)

TIFFs versus PDFs - which is preferable?

Back in 2000 when I started becoming more intense about scanning documents I was told by many people that TIFF files were preferable to PDFs, mostly because the business-class scanners were configured for TIFF output. Once I discovered PDFs, I found them preferable in many ways. Still, there are many people (mostly vendors) who argue for TIFFs. The other day I was sent a white paper comparing the two formats, and I think it nicely sums up the advantages and disadvantages of each format.

The quick and dirty conclusion: PDFs can do a lot more than TIFFs (security, searchability etc), but sometimes PDF files wind up being a little bigger. But, with digital storage costs plummeting each year, this is not a major deficit. Obviously, I prefer PDFs. Otherwise this blog would be called "TIFFs for Lawyers."

Paperless depositions

I don't use paper in depositions.  If I'm taking the deposition I cheerfully agree to have the deposition held in my opponent's office, asking him or her to make sure to have the case documents available and organized by bates-number.   If you can't count on an attorney to have lots of paper what can you count on?

I have my deposition notes set up in an outline on my computer.  When I get to a place that calls for me to talk about a certain document I inform my opposing counsel what the document bates-number is, and ask him to show it to the witness.  I have all the documents bookmarked in Acrobat.  It takes me about 3 seconds to get to the document, and I make good use of the time it takes my opponent to pull the document and show it to the witness.  I have notes superimposed on the PDF and I examine those and get ready to frame my questions.  At the end of the deposition I don't offer any documents as exhibits.  If opposing counsel asks me why I'm not doing that I tell him that the bates-numbers (which I announced on the record before starting my questions about each document) constitute sufficient reference.

If I'm attending a deposition it's even easier.  When a document is offered I ask what the bates-number is and I just pull it up, much more quickly than if I were to wait for it to be handed over.  Plus I have my PDF notes superimposed on my copy which helps me quickly figure out the relevance of the document to my theory of the case.   And of course I can add more notes on the fly if I want to.  I also bookmark the document and indent it under a main bookmark labelled for the deposition in question.  So when the deposition is over I have a listing of all the documents that were referenced in that meeting.

It's not as high-tech as this paperless deposition system, but it doesn't need to be.  Often the best solution is the simplest one, and I think that's true for Adobe Acrobat.  It does a lot of things pretty darn well, and since I use it all the time I'm very familiar with its organization.  Next time you take a deposition consider how much smoother it could be if you didn't have to deal with paper. 

Of course, if you have a deposition like this one it wouldn't matter.

States adopt E-Discovery rules

Here's a list of the states that have adopted E-discovery rules.  This list is pretty long, and will undoubtedly be growing rapidly.

Controversy over the "Send to FedEx" feature in Acrobat

Last week we reported on the "Send to FedEx/Kinkos" function in Acrobat 8.1.  Now it appears that, because of complaints by printing organizations, Adobe and FedEx will no longer partner to offer this feature.  In October, when Adobe releases new versions of Acrobat and Reader, the 'Send to FedEx/Kinkos" link will be removed, although a separate version of Reader will be available from FedEx that will contain this functionality.  Hopefully, FedEx/Kinkos will also create a plug-in for Acrobat that enables the "Send to" feature.

"Send to FedEx/Kinkos" from within Acrobat

I just noticed that in Acrobat 8.1 (I have the Mac version, but it works with Windows too) I have the choice while viewing a PDF to "send the document to FedEx/Kinkos" for printing.  I have a FedEx/Kinkos about 5 minutes away from my house.  Sometimes I when I've needed to print out large document sets for discovery production, and the most effective way to accomplish this was to go to FedEx/Kinkos store.

Now I don't have to get in my car to submit my job.  I can just use the handy "send to FedEx Kinkos" option from within Acrobat.  How does it work?

Once your document has been uploaded your browser will be directed to the FedEx/Kinko's webpage where you can set print options, preview your document, select pickup and delivery options, and pay (of course).  The file size limit is 100 MBs, and it only works in version 8.1 of Acrobat.  They'll even ship the job to whomever you designate when the job is complete. Orders without special instructions take a minimum of 4 hours to produce, and orders with special instructions take a minimum of 10 hours to produce.

More Information: FedEx/Kinkos Webpage Explanation
                                   FedEx/Kinks FAQ Page

UPDATE:  It appears that, because of complaints by printing organizations, Adobe and FedEx will no longer partner to offer this easy solution.  In October, when Adobe releases new versions of Acrobat and Reader, the 'Send to FedEx/Kinkos" link will be removed, although a separate version of Reader will be available from FedEx that will contain this functionality.

Civil Subpoena Form for Federal Court

If you need to fill out a subpoena form for use in a federal court proceeding, feel free to use this one.  I found it by simply searching online.  It has form fields, and even includes a place for a digital signature.  As much as I love digital signatures, I wouldn't use the digital signature in most cases because it looks strange to most people.