One of the last trips that my wife and I made prior to the social distancing guidelines was to Franklin, Tennessee. We had lunch at The Grilled Cheeserie, a restaurant devoted to gourmet grilled cheese melts. The components and options for a grilled cheese—bread, cheese and add-ons—are not complex. Depending on your preferences, mood and dietary restrictions, execution will be the difference between an adequate and excellent experience. (Our experience was excellent!) A production protocol is very similar. The component parts are simple, but how you put them together in a matter makes a big difference.

Document productions are a culmination of the various steps taken to that point throughout your eDiscovery processes. This is a key point in any lawsuit. For the larger matters, with a significant volume of ESI, the keys to a document production are stability and a good overall fit in how you match the ESI Stipulation to the actual matter requirements. Here are the key five points:

• Well-Matched ESI Stipulation. Does your ESI Stipulation match both the particularized needs of the case and the client’s data?
  • The production protocol components are finite, but each component part and the overall protocol should be matched to the particular case schedule and needs.
• Bullets Before Cannonballs. Have you produced a small, sample production at the beginning of document discovery so that the opposing party can test the format?
  • Providing a sample production with representative examples of document and formatting types can ferret out format issues before costs are incurred.
• Timing. Have you accounted for all of your production timing requirements so that you are not rushed at the point of execution?
  • Timing is key on productions. Be sure that you have a clear roadmap for isolating your production sets and have the runway to make the production. And use rolling productions to get meaningful documents out sooner.
• Focus on Redactions. Is there any way to negotiate around having to redact documents with specific agreements?
  • Redactions can be costly. Candid and clear negotiations to avoid redactions can translate into significant costs savings.
• Privilege Log. At what point will you begin working on the privilege log and what agreements have you reached?
  • Each incremental production triggers a privilege log requirement. Agreements reached can save time and burden, and ensure agreement on format.

I was talking to Christy Weisner at EY Law, who, as a former practicing lawyer, has felt the production crunch from both the law firm and vendor sides. Christy immediately singled out the undesirability of a last-minute rush:

“The last thing you want is an unexpected set of documents to review, redact, or log at the 13th hour—yet we still see that happening. Absolutely, testing out the format with a smaller production at the earliest stages is a best practice to work out the kinks, but we often see clients waiting until the final deadline to produce the bulk of the data. That leaves no room for error and less availability for the newly-discovered set of audio files or chats, which now have to be reviewed and logged using overtime hours or with less oversight by the law firm. Work together with your vendors to set aggressive timelines and leave yourself room at the end to focus on quality and the unexpected.”

This takes us into the next phase, review, and highlights the interconnectivity of the various phases.