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PRACTICE Pointers to produce the documents that you plan to rely on either to prosecute your case or defend against the other party’s claims.
A Primer on eDiscovery – Part III Susan R. Laporte Partner In this issue, we continue a series of short articles on eDiscovery. We hope you find these discussions informative and useful.
In Part One of this eDiscovery series, we reviewed your first tasks in managing eDiscovery: “Locate” and “Identify” the possibly relevant discoverable electronically stored information (“ESI”), by assembling an eDiscovery Response Team and identifying your document Custodians. Part Two in this series addressed your next critical step: “Preserve” the ESI. This article addresses the third, and possibly most challenging, task in eDiscovery: “Production” of materials responsive to discovery requests or necessary to prove your case or defense. REVIEW & PRODUCTION OF ESI By now, you’ve located, identified, assembled and preserved all possibly relevant ESI. But how do you go about determining what portion of that ESI is relevant to the claims and issues in a particular lawsuit? How do you go about identifying privileged materials and shielding them from production? And, is the very process you use to identify and produce documents in itself discoverable, or is it something you would prefer to shield as work product? The process of producing electronic documents is rife with all of these issues. If you’re in federal court, Federal Rule of Civil Procedure 26(a) requires that you must promptly identify or produce ESI, documents and tangible things in your possession, custody or control that you may use to support your claims or defenses. State courts may have a similar rule, but as every litigator knows, even without a specific rule, you need
Anyone familiar with production of paper documents has had the experience of reviewing sometimes voluminous client files, followed by the eventual identification and copying of those documents that you and your legal team consider “relevant,” and the withholding or protection of documents that are deemed privileged. The difference between production of paper documents and the production of ESI lies in both the volume of potentially relevant or responsive materials, and the “intangible” or electronic nature of the documents. You can’t put your hands on them and divide them into stacks, or put sticky tags on them, or pull some from a folder and leave others behind. Those processes now have to be done through an equivalent electronic procedure. Two main methods have emerged to assist the practitioner in review and production of ESI: (1) the “Key Word Search” and (2) Predictive Coding. This article will discuss the use of the “Key Word Search” and our column next month will discuss the use of Predictive Coding. Whether you use a Key Word Search or Predictive Coding, you will want to be sure that the jurisdiction in which your case is being tried approves your chosen methodology. Most courts have adopted and approved of key word searching; not all have embraced predictive coding. The production of ESI differs from the production of paper documents in another fashion: the “format” in which the materials will be produced. A paper document is produced as another paper document, i.e., a photocopy. But ESI may be produced in several different formats: • “Native” form indicates production is in the electronic format, i.e., in the format that your computer system uses to store and retrieve electronic data. The USDC for the District of Maryland defines Native Files as “ESI in the electronic format of the application in which such ESI is normally created, viewed, and/or modified.” • Another form would be hard or printed copies of electronic documents. For example, an email message could be printed out, and the printed page would be produced. • Still another form would be to print electronic documents, then scan them back to pdf format for production. (continued on page 13)