There are several time-honored practices in the legal profession whose purpose is a bit hard to understand. Take, for example, the practice of beginning motions with the words "COMES NOW." The only value of starting with these words is that the author of the brief doesn't need to work on a great first sentence. Nine times out of 10, the brief would be better with a first sentence that "sells the sizzle" by engaging with the reader from its first words. (See Ross Guberman, Point Made: How to Write Like the Nation's Top Advocates.)
Just as briefs are usually better without "COMES NOW", discovery is usually better without Bates-stamps, also called bates numbering. Why? First, let’s discuss the history of the Bates-Stamp.
What Is Bates Numbering?
The Bates-stamp, or bates numbering has been around for a long time: Edwin G. Bates patented his device for applying consecutive numerical stamps to documents in 1892. In the old days, Bates-stamping documents required a person to literally stamp each page of the set of documents to be produced. (The value of Mr. Bates' patent was that the number incremented with each stamp, thus saving the clerk from the drudgery of manually incrementing the number between each page.) Parties in litigation would Bates-label the documents they produced in discovery so they could easily refer to the documents during proceedings such as depositions - e.g., "Mr. Witness please turn to the document with the number DEF-006201 stamped on the lower right corner. Have you seen this document before? What is it?" Without the Bates-stamp, it would be extremely confusing to ensure that the witness was talking about the document that the lawyer contends the witnesses was viewing at the time. It can also make it difficult for those who are reading transcripts to follow along. Confusion about such issues can be very problematic - "no, Your Honor, I wasn't referring to the contract when I said that I signed the document, I was referring to ..."
Clearly, Bates-labels were useful, even essential. And, in recent years, Bates-labelling has become even easier with the advent of tools like Adobe Acrobat or Nitro PDF, which will automatically apply custom Bates-labels to PDF documents. (Still, I did encounter a firm using the old-fashioned Bates-device as recently as 2012!)
What can anyone have against Bates-labels? I'm glad you asked. Here are three reasons the Bates-stamp is outdated.
1. Bates-Stamps Haven’t Evolved with Technology
Bates-stamps have been around for a long time, but they haven’t evolved with the times. There has been some evolution, as discussed with the addition of Bates-labels to PDF software, but it has remained essentially the same for over 100 years while how we create, view, and share documents has advanced with new technology. Though the concept of Bates-stamps remains relevant, the Bates-stamp itself hasn’t evolved to work with modern digital files. Even if you are avoiding printing by using a PDF stamp, converting a document to PDF removes important meta-data from the original file. This can significantly change what you uncover in discovery. Bates-stamps simply cannot handle modern documents which makes utilizing modern technology like case management software difficult.
2. You Can’t Stamp an Electronic File
Bates-labels may still be useful for physical documents, but they do not play well with modern evidence, which we refer to as electronically stored evidence (ESI for short). The very idea of applying a stamp - even an electronic stamp - to a computer file is counterintuitive, and for good reason. A computer file is a relatively fragile thing: any alteration to the bytes that make up the file could corrupt the file and render it unreadable. Further, any change to the file makes it a new file. In the law, altering evidence can constitute spoliation and result in sanctions.
3. Bates numbering labels are Wasteful
Of course, when lawyers wish to Bates-label ESI evidence, they rarely mean stamping the original file in a manner that changes it. Instead, the usual process is to convert the original file to PDF form (or print it to paper) and then stamp the PDF file (or the printed document). This process is wasteful and time consuming - and completely unnecessary.
Recall that the purpose of Bates-stamping is to help identify documents that have been produced and to refer to them in proceedings. So, if Bates-Stamps are outdated, what should they be replaced with?
Enter the MD5
ESI evidence (which derives from the 1s and 0s of computer bits and bytes) does not require a Bates-stamp because it has something even better - a unique fingerprint. For every computer file, there is a 32-digit key that is unique to that file. The MD5 hash for a file looks something like this: `79054025255fb1a26e4bc422aef54eb4`. It's not very pretty, but it is worth its weight in gold. Instead of a number stamped on a piece of paper, the hash is a perfect method for specifying one and only one document. During discovery, producing parties can utilize visual timelines or case outlines to produce a list or spreadsheet alongside the evidence they produce that links each file with its hash, and that list will eliminate any doubt as to what was produced and when.
The comfort of consecutive numbers
Still, even with the power of hashes, many still feel the need for consecutive numbering when exchanging documents in discovery. Fortunately, parties can have it both ways. While stamping PDF images or printed pages should be avoided at all costs, parties can agree to prepend a number to the name of each file that's produced in discovery. Instead of overwriting the filename completely with the number, changes to a file name should be non-destructive and reversible. For example, the following modifications could be made:
|Original Document Name||Prepended Document Name|
Making changes like this to file names is accomplished easily with free tools like the Bulk Rename Utility. This task never needs to be performed manually.
That is why Bates-labelling in the sense of stamping printed pages - or even virtual PDF "pages" - is obsolete and unwarranted in the age of electronic evidence. By using tools like hashes we can do much better, and we don't have to modify the evidence in the process.