An Update on Making a Document Production
It’s been a few years since my first set of posts about document productions in discovery. With some additional experience and some new technology available, I share some additional thoughts:
Different litigants have different standards for formality in document production. While many insist on preserved metadata and strict compliance with discovery rules, others are happy to get any documents at all. The latter not want to waste time and money fighting over formalities. It is helpful to know which kind of litigant you are up against (and which one you are) before setting your budget.
Technology-assisted review is more common now than it was even a few years ago when I wrote the original post. And while this makes it much easier to make productions, it skips over the slower, detailed document review that can help an attorney understand her own case. Accordingly, while document productions can be done more cheaply today with the assistance of tech, especially AI, a party may be hurting themselves by doing this process the least expensive way. For important cases, spending time on human review of the documents before producing them may be worth it.
Privilege calls, however, are almost never able to be automated. They require an understanding of how the privilege works that computers just don’t “get.” Computers can help cull down the documents that need privilege review—even so, not perfectly—but, ultimately, human beings still need to do the privilege work to get it right.
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The first step in producing requested documents is gathering your client’s documents and coding each of them for responsiveness and privilege. Some lawyers might stop there. But that’s not enough.
Next, a lawyer needs to redact partially privileged documents, generate a privilege log, and finally export the production in a special format.
Why should you keep reading this post about document production?
If you read the first post about document production, you’ve been in suspense, awaiting the thrilling conclusion to my commentary.
You’ve heard that Litigation is “the most exciting” legal practice, and you’re looking for evidence to the contrary.
You’re tired and want to read something to help you drift off to well-earned sleep.
People used to redact documents in ink, but now e-discovery software can redact documents (Image Credit: Redacted CIA MK-Ultra Project document).
Lawyers Need to Redact Privileged Communications
As I mentioned earlier, a lawyer and her team will use e-discovery software to mark each document that contains privileged communications between the client and the client’s attorney.
The initial emails or texts are clearly protected. But often, an employee of a corporate client will forward the attorney’s advice to other employees and add some commentary of her own. In that situation, the employee’s additional comments are not generally protected by the attorney-client privilege and are can be produced in discovery. (In-house counsel may use this to remind employees not to add comments, opinions, gifs, or even emojis.) Tech tools may not catch every instance of employee-to-employee messages that contain the original text protected under attorney-client privilege. For each such document, the litigation attorney must redact the communication with the attorney and leave legible the non-privileged commentary that follows.
Lawyers need to make sure any potential documents are coded for privilege and redacted, even if the documents are not considered responsive to a document request. This is because a non-responsive document may be produced anyway if it is the family member of—attached to or embedded in—another document that is responsive to a request and thus subject to production.
The Format for Document Productions is Unusual
When I started my first document production, I expected lawyers to exchange a USB drive full of diverse files such as Word documents, .msg email files, PDFs, and Excel spreadsheets.
But the standard for document productions in commercial litigation is to make greyscale TIFF image files for each individual page of emails, PDFs, PowerPoint decks, and Word documents. So instead of producing a 50-page Word document as a single file, a party may produce that document as 50 TIFF images. That may sound crazy, but it allows the parties to put page numbers on each page (called “Bates numbers”) so that the pages can be referenced later. It also standardizes what the document looks like for anyone viewing the document, whether on different computers or as a printed document.
Some files cannot be squeezed into a TIFF format. A common exception is Excel spreadsheets. These often have formulas that require a computer to reveal, or formatting that is best viewed in the program. Another might be a large and complex org chart. For files that don’t lend themselves to page-by-page images, lawyers produce a blank TIFF image that just contains a Bates number (called a “slip sheet”) and then produce the original document in its native format.
In addition to these documents, the e-discovery software will also generate a “load file.” The load file tells the recipient of the production what TIFF images can be grouped together into one document (e.g., “Bates numbers 3-16 are a single 13-page document”) and information about the document, metadata such as its creation date, the person who last touched it, and changes to its file name. Load files will also identify linked documents that are “family members” of other documents (e.g., “Bates numbers 20-25 are an email whose attachment is Bates numbers 26-29”).
Lawyers May Need to Generate a Privilege Log
In many litigations, lawyers also generate a list of each document that would have been produced were it not for attorney-client or other privilege. This list may include communications that were partially produced but redacted to remove protected elements. This list is called a “privilege log.” Each state interprets this federal rule of fair litigation a little differently.
The privilege log provides opposing counsel with enough information to assess whether the communication was properly withheld. If she disagrees, opposing counsel may demand that it be produced, and the court decides. Privilege logs normally list the sender of a communication held under privilege, its recipient, the date of the communication, its general topic, and the legal basis for withholding the document.
Whether you find document production dull or are ready to reach for the popcorn, it can make or break litigation. Make sure the client, their lawyer, and any software used are on the same Bates-numbered page on this topic.