You have survived the toughest steps and now you’re ready to produce all of the data you identified, preserved and reviewed. You’ve even cooperated with your opposing counsel the entire time. Like many of the steps we have discussed in this series, the production phase is dependent upon your preparation.
Production best practices are fairly straight forward. However, successful production is only possible with cooperation. This cooperation begins during the Rule 26(f) conference with opposing counsel, where one of your topics of discussion is production. The Northern District of California has suggested an ESI Checklist that outlines the production topics to consider:
- The formats in which structured ESI (database, collaboration sites, etc.) will be produced.
- The formats in which unstructured ESI (email, presentations, word processing, etc.) will be produced.
- The extent, if any, to which metadata will be produced and the fields of metadata to be produced.
- The production format(s) that ensure(s) that any inherent searchablility of ESI is not degraded when produced.
Further, the Sedona Principles offer guidance on the issue of production. Specifically, Principles 2, 4, 8 and 11 outline certain considerations to balance the rule requirements as well as demands of counsel:
2. When balancing the cost, burden, and need for electronically stored information, courts and parties should apply the proportionality standard embodied in Fed. R. Civ. P. 26(b)(2)(C) and its state equivalents, which require consideration of the technological feasibility and realistic costs of preserving, retrieving, reviewing, and producing electronically stored information, as well as the nature of the litigation and the amount in controversy.
4. Discovery requests for electronically stored information should be as clear as possible, while responses and objections to discovery should disclose the scope and limits of the production.
8. The primary source of electronically stored information for production should be active data and information. Resort to disaster recovery backup tapes and other sources of electronically stored information that are not reasonably accessible requires the requesting party to demonstrate need and relevance that outweigh the costs and burdens of retrieving and processing the electronically stored information from such sources, including the disruption of business and information management activities.
11. A responding party may satisfy its good faith obligation to preserve and produce relevant electronically stored information by using electronic tools and processes, such as data sampling, searching, or the use of selection criteria, to identify data reasonably likely to contain relevant information.
These Principles summarize many of the concepts we have covered in this article series. The concept of proportionality is directly related to the cost and burden of producing ESI. These Principles are great reminders, but if you’re new to e-discovery, they may not help with the mechanics of producing ESI.
When dealing with ESI, the old habits of discovery should be broken. Although you always sent out those boilerplate requests that ask for “any and all documents related to the claim,” think instead of tailoring your discovery requests to the particular type of data and information that you know is available in your case. Do not ask for “any and all data” if you are not also willing to produce the same. Also, instead of barreling ahead with discovery all at once, it might make sense to conduct discovery in phases, particularly when dealing with large amounts of ESI. Think logically. Create production workflows that make sense for your case. Consider producing the data from the key custodians and then determine what additional data should be produced next. Resist the urge to dump data on your opposing counsel.
Further, when requesting and producing ESI, you must consider the form of production. While it may make sense to review searchable PDFs in certain cases, this will not make sense if your data is comprised of lengthy Excel spreadsheets and CAD drawings, which are best reviewed natively. The Sedona Principles suggest producing data in the form in which the information is ordinarily maintained. You should also consider whether it is necessary to produce the metadata. Ask yourself whether the metadata is crucial to the issues in the case. Then discuss with counsel and agree. Therefore, it is important to know your data and have an understanding of the type of data that will be produced in the case. If you have conducted the necessary preparations during the litigation readiness and preservation phases, you should know the types of data that are crucial to the case.
Practically speaking, the form of production also relates directly to how you will be reviewing the data. You should have already reviewed your client’s data and likely have a favorite tool — either an in-house tool or a hosted platform through an e-discovery service provider. You cannot trust that your opposing counsel will produce its ESI in a form that works with your preferred review software. Perhaps counsel does not have a tool and has only reviewed PDFs. Or, maybe you are dealing with an attorney who only reviews paper. If you have considerable ESI, or files that are best reviewed natively, a review platform is crucial to an efficient and cost-effective production and subsequent review. Therefore, you must discuss the form of production early on so that you know whether a certain load file must be created and produced. Additionally, production and preservation of metadata must be considered. Again, this is why communication and cooperation are so crucial to the process.
In essence, best practices during the production phase have less to do with mechanics and checklists and much more to do with practicalities. What is right for one case may not be right for the next case. This is why the concepts of communication, cooperation and proportionality are most important during this phase. In fact, these concepts will be tested most during production, and abiding these concepts is production best practices.