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Leaders in Legal Business
Production
Production is the phase in which the responsive data is made available to the other parties. In some
jurisdictions, local rules may specify the appropriate form of production for data; otherwise, the parties should
address the format for production during the Fed. R. Civ. P. 26(f) conference to avoid costly disputes that may
arise after data is produced, which could require a second production of data in a different form.
Typically parties will elect to produce data as single-page, Bates-stamped TIFF images along with their
metadata, accompanied by a standard database load file. However, some documents, such as spreadsheets,
databases, and presentations, do not lend themselves to that format. Those files are best produced in their native
format.
Presentation
In the final stage of the discovery framework, parties display ESI at trials, hearings, depositions, and the
like to gather additional information, validate existing facts, or persuade a judge or jury.
The “Meet and Confer”
Fed. R. Civ. P. 26(f) requires a pre-trial conference among the parties “as soon as practicable” to discuss
a variety of issues, sometimes called a “meet and confer.” Some state courts have similar requirements. As the
client’s representative, counsel should be prepared to discuss the discovery of ESI at the meet and confer. Ideally
the conference will address a host of issues, including the following:
the scope of discovery, including the subject matter, time frame for relevant information, and potential
custodians;
the accessibility of data, including legacy data and backup systems, as well as any legal restrictions on
access such as data privacy laws;
the scope of the preservation of data, including metadata, and the preservation efforts that are underway;
the form of production of the data;
the use of search terms and other selection criteria to filter the data;
the use of technology such as predictive coding to expedite review;
the timing of data production, including whether production should occur in phases;
the need to protect proprietary or privileged data, including provisions such as a “clawback” agreement
to prevent the waiver of the attorney-client privilege or work-product protection; and
the shifting of costs to the requesting party if discovery will be unduly burdensome or expensive.
Given the breadth of issues that must be addressed, counsel must arrive at the conference well versed in
the client’s data and systems. In many cases, this may require the expertise of an e-discovery consultant who can
advise on any potential problems. Having a knowledgeable third party available for the conference can also satisfy
the lawyer’s duty of competence under a comment recently added to ABA Model Rule 1.1, which requires counsel
to be aware of “the benefits and risks associated with relevant technology.”5
The result of the conference should be a comprehensive discovery plan, which can control discovery costs
and avoid excessive motion practice. It can also serve as evidence of good faith efforts to cooperate should a
dispute arise. The court should enter an order memorializing agreements on key issues, particularly clawback
agreements; Fed. R. Evid. 502(d) orders prevent the waiver of the privilege in the pending matter as well as in all
other federal or state proceedings.
5 MODEL RULES OF PROF’L CONDUCT R 1.1 CMT. 8 (2012).
78
Production
Production is the phase in which the responsive data is made available to the other parties. In some
jurisdictions, local rules may specify the appropriate form of production for data; otherwise, the parties should
address the format for production during the Fed. R. Civ. P. 26(f) conference to avoid costly disputes that may
arise after data is produced, which could require a second production of data in a different form.
Typically parties will elect to produce data as single-page, Bates-stamped TIFF images along with their
metadata, accompanied by a standard database load file. However, some documents, such as spreadsheets,
databases, and presentations, do not lend themselves to that format. Those files are best produced in their native
format.
Presentation
In the final stage of the discovery framework, parties display ESI at trials, hearings, depositions, and the
like to gather additional information, validate existing facts, or persuade a judge or jury.
The “Meet and Confer”
Fed. R. Civ. P. 26(f) requires a pre-trial conference among the parties “as soon as practicable” to discuss
a variety of issues, sometimes called a “meet and confer.” Some state courts have similar requirements. As the
client’s representative, counsel should be prepared to discuss the discovery of ESI at the meet and confer. Ideally
the conference will address a host of issues, including the following:
the scope of discovery, including the subject matter, time frame for relevant information, and potential
custodians;
the accessibility of data, including legacy data and backup systems, as well as any legal restrictions on
access such as data privacy laws;
the scope of the preservation of data, including metadata, and the preservation efforts that are underway;
the form of production of the data;
the use of search terms and other selection criteria to filter the data;
the use of technology such as predictive coding to expedite review;
the timing of data production, including whether production should occur in phases;
the need to protect proprietary or privileged data, including provisions such as a “clawback” agreement
to prevent the waiver of the attorney-client privilege or work-product protection; and
the shifting of costs to the requesting party if discovery will be unduly burdensome or expensive.
Given the breadth of issues that must be addressed, counsel must arrive at the conference well versed in
the client’s data and systems. In many cases, this may require the expertise of an e-discovery consultant who can
advise on any potential problems. Having a knowledgeable third party available for the conference can also satisfy
the lawyer’s duty of competence under a comment recently added to ABA Model Rule 1.1, which requires counsel
to be aware of “the benefits and risks associated with relevant technology.”5
The result of the conference should be a comprehensive discovery plan, which can control discovery costs
and avoid excessive motion practice. It can also serve as evidence of good faith efforts to cooperate should a
dispute arise. The court should enter an order memorializing agreements on key issues, particularly clawback
agreements; Fed. R. Evid. 502(d) orders prevent the waiver of the privilege in the pending matter as well as in all
other federal or state proceedings.
5 MODEL RULES OF PROF’L CONDUCT R 1.1 CMT. 8 (2012).
78
