Introduction
According to Norton Rose Fulbright’s 2023 Annual Litigation Trends Survey, corporations spend an average of $1.7 million on legal disputes for every $1 billion in revenue they earn. With much of that spending going toward eDiscovery, corporate legal teams can add enormous value to their organizations by improving their eDiscovery workflows. There are plenty of tactics that can help organizations increase their efficiency in evidence collection and document review, but one often-overlooked cost center in eDiscovery is document production.
In this post, we’ll take a closer look at document production, starting with what it is and how it fits into the overall eDiscovery process. We’ll then describe the various forms of document production and review what the Federal Rules of Civil Procedure (FRCP) say about it. Finally, we’ll set out a few of the most common challenges associated with document production and share five best practices you can use to streamline your organization’s document production workflows, along with technology that can help.
Contents
What is document production?
How document production fits into the overall eDiscovery process
The forms of document production
What FRCP 34 says about document production
The most common challenges of document production
5 best practices to improve document production
Use modern technology to streamline ESI production workflows
What is document production?
Document production occurs when a party to a legal proceeding provides discoverable information—digital or otherwise—to the opposing party, whether by sharing electronic files, making information or physical evidence available for inspection, or producing copies of documents.
Document production is the means by which the parties to a litigation matter share information, gather evidence in support of their case, and learn what evidence their opponents will base their own case on.
A party may request the production of paper documents or digital information via a request for production or subpoena. The parties may be producing requested documents either during a specific limited period or on a rolling basis as new facts come to light.
With this definition in mind, let’s talk about the process of producing electronically stored information (ESI) in the context of eDiscovery as a whole.
How document production fits into the overall eDiscovery process
Document production is one of the final phases of eDiscovery, as illustrated by the Electronic Discovery Reference Model (EDRM), which is the primary framework describing modern eDiscovery.
As the graphic above shows, before parties can produce ESI, they must first:
- identify potentially relevant ESI;
- preserve and collect ESI;
- process ESI into a useable form; and
- review and analyze ESI for relevance and privilege to determine whether it meets the requirements for production.
Only after ESI has been produced can it be presented to a judge or jury as relevant evidence.
Additionally, as eDiscovery proceeds left-to-right through the stages diagrammed in the flowchart, the overall volume of ESI at issue shrinks—and the relevance of that ESI to issues in the case increases.
But production is itself a multi-step process, as illustrated below.
The steps of production are relatively self-explanatory. The responding party should first confirm what form or forms of production the requesting party has requested. The responding party must then analyze the data to verify that it can produce that data in the forms requested.
If the record includes a variety of data types such as documents, spreadsheets, databases, videos, voicemails, and data from sensors or other internet of things (IoT) devices or if the record includes data that cannot be produced in the appropriate form requested, the parties may need to confer. Finally, the responding party must prepare files and copy them to media to be shared with the requesting party.
Let’s look at the various forms that document production can take.
ESI itself takes many forms. How can the parties agree on a form of production when there may be dozens of different data formats at issue?
Forms of production don’t specify individual file types; rather, they refer to broad categories of file types. The parties may request and produce documents in more than one form, or a combination of forms, including:
- Native: A file produced in the original format used by whatever software, platform, or device created that file.
- Near-native: A file produced in a non-original format (such as EML, MSG, or MBOX files for emails) that functions similarly to and can be searched in the same way as the native format.
- Image: A digital file that contains graphics (such as JPEG, TIFF, or PNG).
- Paper: A hard-copy document, whether it was created in paper form or printed from a digital file.
- Load file: A digital file containing information (including metadata) about the ESI being produced.
What determines the forms of ESI that parties can request and produce? As with the rest of eDiscovery, those guidelines are set out in the Federal Rules of Civil Procedure (FRCP).
What FRCP 34 says about document production
FRCP 34, which governs document production and inspection, sets strict time limits for production of documents, but gives the parties considerable discretion in the forms of ESI they request and produce.
First, FRCP 34(b)(2) gives the responding party 30 days from service or the first Rule 26(f) conference to respond to a request for production. Production must occur within the timeframe given in the request or by “another reasonable time specified in the response.”
The responding party may choose to produce copies of documents and ESI or may allow the requesting party an opportunity to inspect them.
Rule 34 further requires that the responding party state whether it will permit inspection of each item or category of items requested or whether it objects—in which case, it must also explain which part of the request it objects to and why.
The producing party must either organize documents and ESI in the same way that they are kept in the usual course of business or organize and label them according to the categories outlined in the request.
If the responding party objects to a request for a particular electronic form, of ESI, it must specify the form or forms it plans to use instead. If the requesting party fails to specify a particular form or forms in which ESI should be produced, the producing party must produce that ESI in the form or forms that it ordinarily uses or “in a reasonably usable form or forms.”
Now, let’s turn to some of the challenges that arise during document production.
The most common challenges of document production
Before the advent of eDiscovery, document production consisted of boxes upon boxes of paper. This physical document production was laborious and overwhelming, but it was also straightforward. Now that discovery largely involves digital data, organizing document production can feel like battling a Hydra: not only is there still an immense volume of data to manage, but that data may take many different forms. As soon as the eDiscovery team has learned how to manage one data format, two more appear, creating new hurdles for corporate legal teams to clear.
Here are three of the most common challenges of modern-day document production.
1. Data volume
Most organizations store an intimidating volume of data; the average organization creates data from 400 different sources. The volume of organizational data poses a great challenge when it comes to document production. The more ESI an organization has, the harder it is to identify, preserve, collect, process, cull, analyze, and review it all—and the harder it is to complete all those tasks quickly enough to produce data within the timeframe dictated by FRCP 34.
2. Data complexity
Regardless of how much data an organization has, the complexity of that data can make document production exponentially more difficult. Complex data forms include databases, spreadsheets, word-processing documents, photos, videos, and chat messages, any of which may include features like metadata, internal notes or comments, and emojis. Parties that fail to produce all of that information may face reissued requests for production and even court sanctions for violating eDiscovery protocols.
3. Inadvertent disclosures
Accidents and mistakes happen to the best of us from time to time. When one party mistakenly discloses privileged information, there’s always a risk that the court will find that the party waived its privilege. “You can’t put the toothpaste back in the tube,” as the saying goes; information that has been shared, however inadvertently, can’t be forgotten. This can seriously damage a party’s case, hurting their chances of reaching a favorable settlement or winning at trial.
So, what can corporate legal teams do to overcome these challenges and ace document production?
5 best practices to improve document production
Document production can be tedious and challenging, but strategic planning and the right tools can minimize those difficulties. Here are five practices corporate legal teams can follow to make their document production processes better.
1. Understand the rules of the road.
Document production involves both FRCP 34 and Rule 502 of the Federal Rules of Evidence, also known as FRE 502, which governs attorney-client privilege and work product protections. Understanding the contours of both of these rules along with relevant case law, production deadlines, and the terms contained in the parties’ production agreement is critical to ensuring a seamless eDiscovery process.
2. Become familiar with the organization’s data.
Corporate legal teams can overcome many of the challenges of document production by fully understanding how their organizations generate, store, and use ESI. In most cases, it behooves corporate legal teams to learn:
- where potentially relevant digital information is stored (whether it’s on hard drives, onsite servers, or in the cloud);
- who the primary data custodians for different types of matters are; and
- what the organization’s records retention and other information governance policies dictate.
3. Consult with experts as needed.
Corporate legal teams need more than legal knowledge to navigate the document production process. That’s where the organization’s IT team can help. By collaborating with the IT department, corporate legal teams can obtain expert guidance on complicated issues like recovering deleted data or managing the production of data created by collaboration platforms such as Slack and Microsoft Teams.
4. Enter into a clawback agreement.
If privileged material is ever accidentally produced, a “clawback agreement” requires the parties to return any and all of that material. And while FRE 502(e) stipulates that a clawback agreement isn’t binding on the court unless and until the court incorporates it into a formal order, it is binding on the parties—which means it can help them avoid the consequences of inadvertent disclosure of privileged information.
5. Leverage technology.
In eDiscovery, you have to fight fire with fire—or, rather, organizations must leverage technology to efficiently manage the large volume and increasing complexity of data that technology generates in a modern business. It’s particularly important to automate workflows to complete document production on time. eDiscovery platforms that allow legal teams to efficiently search and review their data enable organizations to meet deadlines while reducing overall litigation spend.
Use modern technology to streamline ESI production workflows
By leveraging proven eDiscovery solutions, organizations can equip their legal teams with the tools and technical support they need to respond to requests for production quickly and easily.
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