E-Discovery Production — Snow storms are avoidable
Who is to blame for a “document dump” – a “snow storm” – an obfuscation of information? Sometimes its intentional and sometimes it is not.
Everyone – both plaintiff and defendant; both teams of lawyers. Requesters are imprecise and can be over reaching. Producers are often inflexible and unreasonable.
What is a document dump in the age of 1’s and 0’s? It can happen in several different forms and types; driven largely by the cooperativeness and creativity of the producing party.
Back “in the day” a dump would be dozens, hundreds or, sometimes thousands of boxes of paper documents – the proverbial “snow storm”. Often, the documents in the boxes had little rhyme or reason to their organization. The producing party claiming that the production was, more or less, the way the documents were maintained in the “usual course of business”.
Today, we are at that crossroads where we are exclusively dealing with digital data in discovery, but we still have those cases where a mix of digital and paper is turned into scanned images. Regardless, document dumps are still occurring; they are just digital and can be increasingly creative in difficulty.
Enter “irrelevant” materials. : the producing party has produced everything responsive to the request other than irrelevant documents. Rule 26(b)(1) provides:
“Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim…” (emphasis added)
Producing parties hold back all this “irrelevant” material, but there is no good process for verifying what is relevant and what is irrelevant, except faith. Trying to verify those issues is met with work-product and “discovery about discovery” objections. Please “believe me” is typically the measuring stick for this material. With say a million and a half documents, a hold back of 20% or 30% of that number does not seem unreasonable, but in some productions, we may be talking about 300,000 to 450,000 documents. Add to this, the habit of redacting only portions of documents for irrelevancy; tracking the sufficiency of the production can become a nightmare.
Another problem can be when the producing party produces as kept in the normal course of business, but relates none of the production to the Requests for Production and does not organize the materials in any way (chronologically, by custodian, etc..). This leaves the requesting party unsure about the completeness of the response as each relates to the individual requests. Should the receiving party be forced to live with poor document maintenance by the producing party?
Then, there are the cases where the producing party has previously produced documents in related, other litigation, administrative procedures or in federal investigations. The first production you might get is a “voluntary production.” That production is often a million plus documents in any possible format; possibly OCR’d; and possibly with load files. They are usually not organized in any sensible way; the quality of the production is usually fair to poor; and there are no objective coded fields. You also may get document unitization.
Foreign language documents present very special problems and if the production mixes them with English language documents it frustrates the process. The best method of dealing with a mix of different languages is to request that the producing party provide separate production of English language documents from each foreign language documents. Are they compelled to do that under the rules? No. If they agree, though, this allows for more easily breaking up the work for reviewers and assignment of coding that makes sense.
So, what can we say with certainty?
- Rule 26 is in place for a reason. If it were more conscientiously followed, litigation discovery would go smoother.
- Sadly, Rule 26 is less than clear in solving many practical problems, but cooperation can ameliorate these problems.
- Reasonableness must be the word for all parties in production.
- All parties must realize that costs are increased by a failure to cooperate.
- The courts must adhere to more practical solutions and less to the black letter of the law. If a certain production method makes it easier for the receiving party with no particular extra burden, allow it whether specified in the rules or not.
In the digital age, there are some very basic tenets that, if followed reasonably, would cause improved document/data handling, reduce costs overall and streamline most cases:
The parties should cooperate in both the spirit of and the letter of Rule 26 requirements.
- Meet & greet conferences should be in person with all technical persons required to make solid decisions and allow counsel to be fully informed.
- Scanned document production should be standardized, unless otherwise reasonably specified; TIFF formats, 300 dpi captures, color scans for color documents, and correct document orientation.
- All spreadsheet documents should be produced in native format with formulas intact as a standard.
- All Word (and similar) documents having multiple versioning capability should be produced in native format where versions exist, with a placeholder in the image production.
- Attachments should be properly associated.
- Cost sharing should be more thoroughly explored. Objective coding should be a shared cost in most production.
- Handling of email production should be standardized to require metadata production in a way that permits threading and family groupings.
- Document redaction should be done in a way to allow ease in isolating redacted documents for court review. Redaction logs for multiple categories of redaction reasons should be provided.
Do the rules specifically call for any of these recommendations? Nope. Should they? Nope. The court should be permitted to apply rules in a way that make sense and force parties to adhere to good, practical sense that seeks to control cost and make production smooth and reasonable to use.
The parties should take care to draft concise and clear requests for production. This will require that each has a full understanding of what data is available, where it is kept, how it is kept and the reasonable method for production.