Important Logs and Key Takeaways, Production Fundamentals Series Part 6

A multi-part series on the fundamentals eDiscovery practitioners need to know about the preparation and production of ESI

In “The Final Countdown,” we discussed the importance of production and the primary production formats.  In “The Nitty-Gritty and Other Reduplications,” we discussed other important production format considerations.  In “Who Gets to Decide,” we discussed what the FRCP have to say about who selects the production format.  In “Production Format Disputes,” we discussed some example production dispute cases.  In “Preparing the Production,” we discussed the actual preparation of the production.  In this final Part, we review privilege logs, production logs, and key takeaways.

As you approach the end of your production efforts, there are two additional steps that should be taken prior to delivery of the prepared production set(s).  First, if any materials have been withheld due to privilege or work product protection, those materials will need to be documented in a privilege log.  Second, for your own records, you should prepare a production history log documenting your production(s).

Privilege Logs

As we’ve discussed, protecting privileged materials from inadvertent disclosure is of paramount importance during discovery, both because attorneys have an ethical duty to protect client confidentiality (see, e.g., ABA Model Rule of Professional Conduct 1.6) and because inadvertent disclosures can lead to privilege waiver if reasonable steps to prevent the disclosure weren’t taken (see Federal Rule of Evidence 502(b)).  The final step in that privilege protection process is the preparation of a privilege log to accompany your production set delivery.

FRCP 26(b)(5) provides the basis for this requirement in federal courts:

(5) Claiming Privilege or Protecting Trial-Preparation Materials.

(A) Information Withheld. When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must:

(i) expressly make the claim; and

(ii) describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.

The preparation of privilege logs can be a time consuming process, since each individual document withheld must be recorded, the claim for it articulated, and an adequate description written, and since, in larger cases, the total number of documents requiring logging can be quite high.  As a result, it is common to begin planning and preparation for privilege log creation during the document review phase of an eDiscovery project.

It is common during document review to have reviewers designate not just general privileged status, but also to select the applicable legal basis from pre-written options so that those fields can be automatically populated during privilege log creation.  To facilitate this, many document review platforms include features for privilege log creation, including the ability to automatically populate the log with key details about the documents your review has designated as responsive but privileged (e.g., date, file name, file type, claim basis, etc.).

Because of their near-universality, privilege log format examples and preparation guidance are widely available, including alternative approaches to consider and guidance on privilege itself.

Production Logs

In addition to creating the privilege log that you will provide with your production set delivery, it is also important to create and maintain a production history log for yourself.  In this era of large ESI volumes, it is common to complete multiple productions on a rolling basis, providing responses to different requests or materials from different sources as work on them is completed.  Additionally, matters with an open-ended period of relevance may require supplemental productions to be made as new responsive materials are generated.

A production history log documents all of the details you might need to know later (or be able to demonstrate to someone else later) about all of those productions.  Key details to document include: what you produced, what formats you produced it in, when you produced it, how you delivered it, to whom who you delivered it, the requests to which it responded, and the Bates ranges it contained.

Key Takeaways

There are six key takeaways from our review of production fundamentals:

1. Effective production of ESI is both a requirement of the rules and one element of fulfilling an attorney’s duty of technology competence for eDiscovery

2. Productions can be made in four primary formats or combinations thereof: paper, near-paper, native, and near native, and they may include load files, metadata, redactions, endorsements, scanned physical documents, and more

3. The production format and related specifics should be negotiated between the parties as part of their initial meet-and-confer, but parties can also later request responses in a particular format, object to a requested format, and if necessary, seek orders to compel or protect

4. In the absence of an agreement or order otherwise, ESI must be produced either as it is kept in the ordinary course of business (e., native format) or in another reasonably usable format (i.e., one that is searchable and that is sortable by metadata)

5. Thorough quality control checks should be performed to ensure: that the right materials are included in the set to be prepared for production, that the prepared production still contains all and only the right materials, and that the prepared production matches the required production specifications

6. In addition to the production set deliverable itself, you must also prepare a detailed privilege log for the requesting party and a detailed production log for yourself

For Assistance or More Information

Xact Data Discovery (XDD) is a leading international provider of eDiscovery, data management and managed review services for law firms and corporations.  XDD helps clients optimize their eDiscovery matters by orchestrating precision communication between people, processes, technology and data.  XDD services include forensics, eDiscovery processing, Relativity hosting and managed review.

XDD offers exceptional customer service with a commitment to responsive, transparent and timely communication to ensure clients remain informed throughout the entire discovery life cycle.  At XDD, communication is everything – because you need to know.  Engage with XDD, we’re ready to listen.