PDF for Lawyers

Adobe's SendNow is quite useful for lawyers

Increasingly attorneys who litigate are producing documents to opposing counsel via email as PDFs. Or, at least they try to. Then if the file size of the PDFs is too large, they resort to using some kludgy solution like Dropbox or some other online repository. Up until recently, that's what I did.

Adobe's SendNow service is a web-based tool that anyone can use for free, with some limitations. With the Free Plan are limited to file sizes of 100 Mbs, and you get a maximum total online storage of 500 Mbs. Also, recipients have 7 days to download the files. For most small productions that's enough.

The Basic Plan gives you 2 Gbs for file transfers, and up to 5Gbs of storage. But the real kicker is that it also gives you detailed tracking of when the files were downloaded and by whom. Thus, in effect, it's like having an audit trail of the fact that the documents were produced on a certain date. Litigators surely want this, and I would think that they'd happily pay the $10/month fee.

Let me make it clear how the detailed tracking works. First, the entire history of all of your productions are stored online under your SendNow account. Second, each time a recipient successfully downloads a PDF document production you are notified by email.

If you need more than 5Gbs of online storage you can opt for the Plus Plan, and get 20 Gbs of storage. You'll still be limited to productions at 2 Gbs. The price is $15/month.

The SendNow feature is built into Acrobat X, so if you have the latest version of Acrobat you can issue the production from that program without having to navigate to the web. You may still have to log into your Adobe SendNow account, but it's certainly very convenient to do this from within the program that you no doubt used to prepare your online document production.

If you don't have Acrobat X you can download the SendNow Desktop application for free, and use that program. SendNow supports many file types besides just PDFs (e.g. Microsoft Office docs, audio and video files etc.).

The only caveat about SendNow is that its use is limited to one user (since it's tied to an individul Adobe ID, and the Terms of Use don't permit several people to piggyback on that one ID). The recipients of your SendNow production do not need to have a SendNow account.

Why would a lawyer embed a file into a PDF?

Today we’re going to talk about attaching files to a PDF document, which at first seems like a weird thing that no lawyer would ever need to do. But, in a minute you’ll see that this could be incredibly useful.

Let’s say you’re a litigator and you use PDFs as your file format whenever you have to produce documents. Let’s say you have an Excel spreadsheet that’s important and so you’ve ‘printed it to PDF’ so you can manage it in your paperless document system. But, because of those pesky new procedural rules involving ESI (i.e. ‘electronically stored information’) you’re obligated to produce the Excel file to your opponent.

Now you’ve got this .xls file that you have to make sure stays connected to the PDF. So how to you keep the PDF and the .xls file associated? Easy: (1) convert the Excel file to a PDF using the ‘print to PDF’ function, and (2) embed the .xls file inside the resulting PDF.

Embedding the .xls file into the PDF is also useful from an ‘inventory control’ standpoint. What do I mean by that? Well, think about bates-stamping. One of the benefits of bates-stamping documents you produce is that you can later refer to any of those documents simply by its bates-number. If you’re at a deposition and you show a witness a document that you want to identify you can say “I’m showing you a document previously marked with bates-number D94878.”

The alternative, which most lawyers usually resort to, is to attach a paper copy of the document to the deposition. The problem with that approach is that, later on when you’re at trial and there is a question about which document was shown to the deponent (now a witness at trial), you’ll have to pull out an official copy of the deposition with the attachments to establish what document the deponent was being shown at the deposition.

From now on, forget the ancient ritual about attaching exhibits to depositions. You’re striving to be paperless (and efficient) and you can’t be hampered by mindless lawyer habits that are decades old. It’s better to bates-number documents (or files) that you might want to refer to, or that your opponent might refer to. Then you can “state for the record” what the bates-number is, and —bingo— you’ve identified the document in a way that no longer requires the use of attachments to depositions etc.

So how do you bates-stamp an Excel spreadsheet? Obviously you can’t unless you ‘print it to PDF’ and then bates-stamp it. One thing that makes PDFs great is that you can easily bates-stamp them. And now you know that you can also embed files into PDFs, which allows you to bates-stamp the container that includes the native file. So one the one hand PDFs are ‘digital paper’ that can be bates-stamped like paper, and printed out one to paper. On the other hand a PDF is also can be a container for other files. PDFs can contain embedded audio and video, not just Excel spreadsheets.

How do you embed a file into a PDF? It’s actually pretty easy. In Acrobat 8 and 9 you just look for the small grey paperclip icon at the bottom left of the PDF file you want to embed into. Here we see an example of a spreadsheet ‘printout’ that we want to attach an .xls file to.

If you click on that grey paperclip icon the following window will open up and from here you will see an ‘ADD’ button that allows you embed the file of your choice once you click it and then select the file you want to embed.

And that’s pretty much it. Remember PDFs can be both 'digital paper' and containers. And if you want to bates-stamp a file that can’t be bates-stamped under normal conditions, then put it in a PDF and bates-stamp the PDF.

 

Two really useful shortcuts in Acrobat

Spending the time to learn shortcuts will help you get the most out of any software, and that’s especially true of Acrobat. Here’s a quick tip that makes use of two important shortcuts.

Let’s say you have to review one big PDF with a lot of pages. Maybe it’s is one long document, or maybe it’s a PDF that needs to be broken up into a bunch of smaller documents. But let’s assume it’s the kind of document where you really just need to quickly blast through it quickly, scanning it like Evelyn Woods. The first thing you want to do when you review a document is get rid of the distractions. You can make it so Acrobat takes up your full screen, but then the toolbars and menus would still be distracting. 

No, what you want is to make your computer screen show only the document itself. 

You could go to the VIEW menu and then select FULL SCREEN MODE, but this is a post about using shortcuts. What is the shortcut for ‘FULL SCREEN MODE’? (Go navigate to VIEW > FULL SCREEN MODE and you can see for yourself). The shortcut is some key and the letter L. Which key? Depends on if you’re using a Mac or a PC.  On a Mac the key combo is COMMAND + L; on a PC it’s CONTROL + L. Why the letter L? Who knows, but let’s say it stands for ‘large’. That will help you remember.

So when you blank out the distractions and you start hitting the down arrow key to go page by page, what do you do when you come upon a page you want to mark? You use the bookmark shortcut. What is the bookmark shortcut? It’s the same key we used before (depending on if you have a Mac or a PC) and the letter B. That’s pretty easy, right? B is for ‘bookmark.’

And the cool thing is you can apply the bookmarks while you’re in full screen mode. If you didn’t know the shortcut you’d have to leave full screen mode just to create a bookmark, which would make it impossible to effectively use the full screen mode. Now you know the secret to quickly reviewing a document. Pop into full screen mode with Command + L (or Control + L if you have a PC), and then use the same key with ‘B’ to create bookmarks. Once you’ve bookmarked the entire file you can go back and quickly rename the bookmarks or add additional commentary.

Incidentally, the View Full Screen command also works in Adobe Reader too. Unfortunately you can’t create bookmarks in Adobe Reader, though.

 

Capturing web pages with Acrobat

These days a lot of litigation requires lawyers to capture information on a website, or a web page. If you learn about online information damaging to the other side of your case you should capture it immediately. The easiest way to do this is to just go to the page in question, and 'print to PDF.'  If you have Acrobat I'm sure you know how to do this.

Let's say you want to capture the information on my law firm website (actually a blog), which is at www.svensonlaw.com. You can pull that up in your browser and then select 'print to PDF'.  The result will be a capture the output on the home page. Now you have to do this for each separate page on my site, which has 5 separate pages. Not a big deal, maybe, because my site isn't that big.

But even with a small site like mine it's a lot more efficient to simply direct Acrobat to capture the entire site.  Here's how you do that in Acrobat 9 (Standard or Pro). First go to ADVANCED > WEB CAPTURE > CREATE PDF FROM / APPEND WEB PAGE. Then you'll get a dialogue box like this.

Don't click on the CREATE button. That would yield only a capture of the home page, which is too limited. You want to capture the entire site, so click on the button to the left of the text in the lower left that says 'Capture Multiple Levels'. Once you do that you'll get a dialogue box like this:

Don't click just yet. You'll notice that here the dialogue box is set to only capture the first level. You want to get the entire site, so click that box.

The next dialogue box will warn you of the perils of trying to capture an entire site, which is reasonable because I'm sure some lawyers out there might think that they can use this tool to capture the CNN.com site. That would take a really long time and create a really large file, if it worked at all. And that's what the next dialogue box is trying to make you aware of.

So just click YES and the process will start. Just to give you an idea of how long it might take to capture a small website, it took about a minute to capture the 5 pages on my law firm website.  The result of the capture is a nicely bookmarked PDF file, which looks like this:

This is obviously much better than creating separate PDF files for each page by using the 'print to PDF' function. If you did that you'd have to merge the files into one file, which is easy to do but does involve a whole extra step. With the web capture function you can be sure that you're getting the entire site (or however many levels you choose to capture).

Granted, there are times you may have to resort to simply 'printing to PDF,' such as when you try to capture certain sites that are password protected (e.g. Facebook pages). But you can always try the web capture at one or two levels and see what happens, and then fall back on the 'print to PDF' function if you're not capturing the pages using the web capture.

As I mentioned earlier, this feature is part of Acrobat Standard and Acrobat Pro.

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.

PDF redaction gone awry

No matter how many times one explains the proper way to redact information from PDF files, there will continue to be major screwups.   What's a major screwup?  This would be a major screwup.  

Okay, once more: there are redaction tools built into Adobe Acrobat 8.0 and 9.0.  If your law firm doesn't have either of these versions it's time for an upgrade.  Oh, and don't forget to train your lawyers and staff on how to do proper redaction.

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)

10 rules for managing Electronically Stored Information

John Barkett, a partner in the Miami office of Shook, Hardy & Bacon shares his thoughts on managing ESI in this informative podcast. Among the tips: identify an 'electronic document team' in your organization, and then find the most qualified person to serve as a spokesman to testify in court (if necessary) about the steps taken to comply with ESI obligations. Oh, and since we're talking about digital technology, make sure you have a 'back-up spokesperson.

Lots of good thoughts by Mr. Barkett, so if you want to get a handle on how to manage E-Discovery then listen to this short podcast.