This is the third column in a series addressing the challenges and opportunities presented by litigating in forums with no e-discovery rules. Read parts one and two. This column considers strategies to penetrate your adversary’s veil of secrecy to ensure reasonably complete production of electronic documents.
What is the veil of secrecy? Consider the litigant who refuses to disclose when or how that party implemented a litigation hold, or where and by what methods the party is searching for responsive electronic documents. Instead, counsel asserts that her client’s sole obligation is to provide a boilerplate certificate of completeness at the end of document discovery and that any further inquiry is barred by the attorney-client privilege and work product doctrine. This veil of secrecy, unless penetrated, may prevent your company’s counsel from even initiating what, in the federal courts, typically would be an extensive discussion and negotiation of both sides’ e-discovery obligations.
Absent such cooperation, your company’s counsel must use indirect methods to test the completeness of the opposing party’s production and develop a factual record that demonstrates good cause to believe the production is not reasonably complete. One approach that is particularly well-suited for production of emails is to use sampling across multiple productions to determine the completeness of the adversary’s production. Emails that have been sent and received among multiple parties participating in discovery offer a relatively simple way to measure the completeness of each party’s production.
For example, in a typical business dispute, the plaintiff and defendant may have exchanged thousands of emails CC-ing multiple custodians for both parties on each email. Tracking the production of these emails by each party and, where productions are segregated by custodian, by each custodian within each party, can identify potential gaps in the production. Such analysis is relatively straightforward with any robust document review platform and underscores the importance of including custodian identifiers in production metadata and objecting to de-duping emails across custodians by the producing party.