In a modest 30,000-page ediscovery production, in which 5,000 pages are tables, lawyers and courts need a way to refer to the exact table found on the eleventh page of the defendant’s eighteenth production. While that page may have an “11” in the lower right-hand corner, 782 other pages may be similarly marked. Bates numbers offer a way to specifically identify each individual page of a production.
Bates numbering — also known as Bates stamping or Bates labeling — is the process of assigning a unique, sequential identification number to each page, file, or image in a voluminous production. Bates numbering is also used in medical and business records, where it may or may not include labels for the date and time of a page’s creation.
Bates numbering has been used for well over a century. It gained its name from the Bates Automatic Numbering-Machine, patented in the 1890s by Edwin G. Bates. This sequential-numbering stamp was used to manually mark each page in a record. Now that most discovery is not paper-based but instead involves electronically stored information (ESI), Bates numbering is evolving to meet the needs of that media.
While the original Bates stamps only used numbers (up to a maximum of 9999), there is no set format for Bates numbering. It may be purely numeric or alphanumeric. Either way, Bates numbering is essentially a paper-based method, most useful for printed productions or page-based images. With digital files, the standard approach to Bates numbering requires conversion of file information to PDF or TIFF image files. Ediscovery software can then auto-paginate that file information, marking each page or image with a unique identifier.
Many legal technology companies and ediscovery thought leaders are urging the industry to move away from Bates numbering. Because Bates numbering assumes a page-based printed production, it adds costly steps to ediscovery: scanning, imaging, and then sequentially numbering files that already exist in a usable, identifiable form. For example, the contents of native-format files cannot readily be Bates numbered. Similarly, files like Excel spreadsheets aren’t necessarily formatted for or conducive to pagination.
To remedy these concerns, some suggest replacing Bates numbers with hash values, unique file name identifiers that are commonly 32 or 40 digits. Unlike Bates numbers, hash values are non-consecutive. However, also unlike Bates numbers, hash values are automatically generated; any modification to the underlying file also changes the assigned hash value, making changes easy to spot.
Evolution notwithstanding, courts may take a dim view of litigants that ignore Bates numbering. In U.S. ex rel. Proctor v. Safeway, Inc., No. 11-cv-3406 (C.D. Ill. Mar. 8, 2018), the defendant produced around 575,000 documents in native format, without Bates numbers. Some of those file were apparently “a mass of incomprehensible special characters,” as the defendant failed to review those files for responsiveness. There, the court required the defendant to fully review its production for responsiveness and to uniquely identify every file with a Bates number.
Bates numbering is a way to identify every specific piece of a production by assigning a unique, sequential identification number to each page, file, or image.