Step 1: Understand Your Obligations and Requirements
The party to which a document production request is directed must disclose all documents and ESI relevant to a legal investigation with the exception that documents can be withheld due to privilege.
Rule 34a of the Federal Rules of Civil Prodecure (FRCP) states that a party may serve on any other party a request [to produce documents and esi] so long as that request isn’t unduly burdensome according to Rule 26b.
In these early stages, the 26f meet and confer conference will be an opportunity to strategically negotiate the scope of investigation to benefit your side. Important production issues such as form of production and data formatting will be crucial negotiating points to keep the production deliverable standardized to the workflow of your firm. The 26f conference is designed to establish an ongoing, cooperative relationship with the opposing party. This will help you be proactive in identifying possible production issues rather than waiting until you are under a tighter deadline.
Consider the following points before you begin your document production
- Agree on reasonable and appropriate metadata to exchange with the opposing party
- Be aware of production deadlines
- Avoid starting your document production until you have agreed upon obligations for all parties
Not sure what should be included in the production agreement? Here is a sample production agreement.
Step 2: Identify Documents For Your Production
As you conduct document review, you will have to manage multiple workflows and maintain specific policies to make sure your document production is consistent and defensible. As your document production grows in size, there will be an even greater need for a pragmatic, scalable approach to your marking and QC practices. For example, as a marking policy: if one document in a thread is marked as responsive, should you produce the entire thread?
Depending on the workflow of your team, you may be tasked with making a wide range of decisions on each document. Yes, you are reviewing documents for responsiveness, but also keep a close eye on potential requirements for confidentiality on each responsive document. Have you agreed upon certain protective order designations with the opposing party? For example: Attorney’s Eyes Only (AEO) is a common protective order designation.
A privilege log is required for each document marked as and withheld due to privilege. As part of your production QC, ensure that your privilege log is complete and correct. Also consider – are there any documents in the production marked as privileged? Should all privileged documents be removed from the production? Have all redactions been applied correctly and are there any documents in need of further redactions?
Step 3: Determine Production Settings And Image Formats
These image formatting decisions will center around how to produce in a way that all documents are meaningfully viewable.
Imaged format refers to an imaged copy of a document, usually in TIFF or PDF format. Imaging documents for production is common in eDiscovery software tools. In a document production, an imaged file will almost always be accompanied by a text file containing all processed plain text in that file as well as all OCRed words which could have been picked up from scanning the image or PDF.
File types or specific documents with unique viewing and metadata requirements may need to be produced in native format. Native file format refers to the default file format that an application uses to create or save files.
For example the default file format for Microsoft Word is .docx. In this file format, you will be able to see the document as it is meant to be viewed, including all metadata as it was originally stored (as long as the document was collected in a forensically sound manner). You may consider producing videos and audio files in native format to ensure you can watch the video or listen to the audio. Some legal professionals also choose to produce excel files in native to ensure that all information is viewable in the intended format such as hidden notes linked to individual cells.
Production settings can be applied by file type as a policy across your entire production, or you can specify unique settings for an individual document.
Here are some examples of common production settings:
- Native vs TIFF
- Image quality and optimization
- Color vs Black & White (BW)
Step 4: Finalize The Production To Comply With Technical And Content Requirements
After the production has been imaged, prepare your production to be endorsed.
Sequence Order Settings
Decide on the sorting mechanism for the document production sequence order. This will be the order of which the bates number will be applied. By default, in DWR, the bates number will be applied in sort order based on 1) primary sort by custodian 2) secondary sort by document family with emails and attachments prioritized at the top.
Bates Numbering Settings
- How should the bates number be formatted?
- What should be the starting bates number?
- Which endorsements should be stamped on each page? Common endorsements are the bates number and the protective order designation.
- How should each document be named? Consider appending the protective order designations in each the document’s name so that the confidentiality orders such as Attorney’s Eyes Only are clear.
Tip: Test OCR text files and make sure redacted text is not included.
As we mentioned, every imaged document that is produced will be accompanied by a corresponding searchable text file. Upon redacting a document to cover up certain information, the text file will need to be OCRed to reflect the possible removal of words under the redacted area.
**Make sure to re-OCR redacted document images. Otherwise, redacted text will still be searchable in the included text file.
Step 5: Export And Deliver The Production
Make sure your production export includes all the standard load file formats – lfp, opt, dat and even csv. The receiving party will only need the dat file and one of either the lfp or opt. However, it is industry standard to export your production with all of these load file types as different eDiscovery tools may have different requirements for importing a load file. In Digital WarRoom, you are able to upload a standard load file to your eDiscovery environment using our built-in wizard without the need for an outside consultant. For most load files, you should have no problem using this tool to align the incoming fields with the fields in your local environment.
How will the production be delivered? How many times is your data changing hands? Be intentional about who is allowed to have control of your client’s data. To give you peace of mind, Digital WarRoom offers a secure data transfer tool that can send productions directly to the opposing party and receive data directly to your eDiscovery environment without the need for client data to ever be handled by a third-party sub-processor like Dropbox, Google, AWS or Azure. Other common tools for document/production delivery methods include shipping a hard drive or FTP. As an added precaution, we recommend zipping up and password protecting your production to ensure that your client data is only viewable to the intended audience.
If you are on the receiving end of a production delivery, make sure that someone is assigned the job of validating a production that came in. This delivery should be tracked in an audit log which will be useful down the line to verify that you met your legal obligations.
Document productions may seem daunting at first. We find that most issues with productions fall under several predictable categories. If you have any questions about how a document production will work specifically in Digital WarRoom, feel free to leave a comment, or reach out to us directly by leaving a message in the footer of this page.
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