Production

We turn our attention now to the final pre-trial phase of an electronic discovery effort: production. It is important for practitioners to understand the range of possibilities and their differing requirements, limitations, and implications, because the way materials are produced affects how much time and effort they take to prepare and how easily they can be searched, reviewed, and used later in depositions and at trial.

Beyond just deciding on your optimal combination of paper, near-paper, native, and near-native production options, there are a range of more-detailed options for you to consider. Among the most important are options related to load files, metadata, redactions, numbering and endorsements, and paper integration.

Now that we’ve reviewed the available production formats and related options, it’s time to discuss which party gets to decide on the formats and options to be used in a typical case. Pursuant to the Federal Rules of Civil Procedure, both parties have opportunities for a say: first, in negotiations; then, through requests and objections; and finally, through motions to compel and protect.

Now that we have reviewed how the production format selection process is supposed to work under the FRCP, let’s take a look at some recent cases to see the disputes that arise and how courts are applying those rules in practice, including: a joint failure, a protocol deviation, a waived objection, an award of expenses, a failure to request metadata, and more.

Now that we have reviewed the range of production formats available, the additional decisions that need to be made, and the rules and cases about who gets to make all those decisions, it’s time to review the actual preparation of the production in the chosen format. This process is typically a collaboration between members of the case team and the technical professionals responsible for administrating your chosen processing and review platforms.

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).