Where to now, Bates?

By | 25th February 2013

Bates is a reasonably common English surname.

It may derive from the Old English “bat” meaning a boat and thus boatman. It may be a diminutive of “Bartholomew” which itself is a patronymic meaning “rich in land.” For example there is a record of a Bate le Tackman owning land in Lincolnshire in the 13th century. In 1635, records show that the family of Clement Bates and his wife Ann left England for the New World with their five children and two servants thus becoming some of the earliest settlers in what was to become the United States.(http://www.surnamedb.com/Surname/bates)

If you count yourself among the substantial number of avid followers in both this country and the US of the TV series Downton Abbey http://www.itv.com/downtonabbey you will be familiar with the character Bates, played by Brendan Coyle. For those not familiar with the story to date, Downton Abbey is the story of the Grantham family set in the period just before and after the First World War. Bates is employed by Lord Grantham as his valet. Subsequently Bates falls in love with ladies’ maid Anna but they cannot marry as Bates is still married to his first wife. Bates ends up in prison accused of the murder of his wife. For most of the last series Bates has been in prison awaiting trial, largely forgotten by all except the loyal Anna. Indeed, where to now, Bates?

We will have to wait for the fourth series to see what Julian Fellowes has planned for his rather lugubrious character, but after all the angst about the Crawleys’ marriage (or not) and the other shortlived but ultimately disastrous liaisons in the story, I would not bet against Bates being acquitted thereby becoming free to marry the long suffering Anna.

Some years before the events portrayed in Downton Abbey, one Edwin G. Bates of New York City had invented and patented an automatic numbering machine named the Bates Automatic Numbering-Machine or Bates stamper. Lawyers quickly became familiar with this machine which allowed numbers, dates or time-marks to be impressed on images and documents as they were scanned or processed, for example, during the discovery stage of preparations for trial. Hence Bates numbers.

Where to now Bates? I confess I had rather assumed that the days of Bates numbers were, well, numbered! After all, what in effect solved a categorisation problem when lawyers were dealing with paper was not likely to survive the electronic and digital age in its original format.

How wrong can you be!?

Courtesy of a  recent entry on LinkedIn posted by New York based lawyer Monique Altheim, I have been alerted to a strange decision where the court has ordered that Bates numbers MUST be used in a discovery dispute http://ow.ly/2uYSS5

What caught my eye was the headline “Please don’t Bates stamp e-discovery.” California lawyer, Joshua Gilliland, writing as a blogger for Bow Tie Law (look at the photo on the above link and you will see what I mean) explains why the case is his eDiscovery nightmare.

As he says:

“Why is this a case a nightmare for me? Because it applies a paper model of discovery to electronically stored information, requiring a conversion of ESI into a TIFF with Bates Stamps (a conversion which can triple processing costs with some service providers). What is even stranger about it is the form of production battle centered on PDFs vs TIFF, both of which are static images. One difference is a PDF can be either non-searchable (thus like a TIFF) or searchable (thus more like a native file).”

He also compares the order for Bates Stamps to trying to fuel a hybrid car with coal! His article is short and, some would say, pithy. It certainly pulls no punches with its criticism of attorneys who want Bates numbers on lots of pieces of paper, forgetting that:

“…we now live in a world where the content on a smartphone can fill the first floor of a library. Data needs to be reviewed as data for there to be any chance to meaningfully understand its content. Moreover, as to the Bates Numbering to organize the ESI issue, native files can have a “control number” that is the functional equivalent of a Bates Number for management in a review platform. If there is still a concern about whether a file has been changed, parties can use MD5 hash values instead, to ensure the ESI has not been modified.

It is worth recording Mr Gilliland’s conclusions:

“Finally, I believe forward thinking local rules are extremely helpful for litigants. However, as technically (sic)changes, these rules need to be updated to incorporate how computer-assisted review can cut costs, advances in processing or even the cost-effectiveness of remote depositions. What was forward thinking in 2006 can be outdated in 2013.

In the end, converting standard ESI like email to TIFFs to brand Bates Numbers should give lawyers nightmares of high processing costs, slow manual review and unhappy clients. It should only be done when the native file itself is not in a reasonably useable form, thus the static image is the only reasonably useable form.”

In my view, all this comes down to having a sensible conversation with your opponent before setting out on a course which may prove to be costly, unnecessary and possibly futile. More cooperation is the name of the game here and for me, this looks like the answer to the question, where to now, Bates?