Let’s Talk Form of Production

A discussion between parties on form of production prior to data production really isn’t that difficult. So, why don’t we do it more often?  The Federal Rules of Civil Procedure, as well as many state court rules, tell us we should.  Yet, in practice, it still seems that parties oftentimes skip this conversation and end up dealing with it in costly motion practice.

As evidenced by a plethora of caselaw, a form-of-production conversation doesn’t always end up with an agreeable solution, but it can prevent battles and frustrations between parties in many instances.  Also as evidenced by caselaw, the form in which ESI is produced matters.

A current example of how and why it matters is being played out in post-trial motions in the Coquina Investments v. Scott W. Rothstein and TD Bank, N.A. case (USDC Southern District of Florida).  One of the issues is related to a critical document produced by TD Bank that the moving party argues was altered.  Rather than producing either a native copy or a color image of the document, TD Bank produced a black and white copy that had been allegedly degraded by photocopying.   The produced copy did not display the “HIGH RISK” label (which was a red band with white letters) that the native or color image, which was later discovered by production in another case, did.  A copy of both versions of the document can be found on the ACFCS website  here.  I do not care to dissect what may or may not have happened here, I simply want to make the point: it matters.

I have participated in hundreds of form-of-production conversations with counsel to whom I played a supporting role in litigation, as well as with opposing counsel.   I find that oftentimes they simply need an explanation of what the production options are, term definitions, and the pros and cons of the many production options.   Attorneys are not – and should not be – on the ground running productions.  They do, however, need to be informed and knowledgeable as to production options and issues and need to have form of production conversations with their opponents.  My advice:  (1) talk to your geek, and (2) invite your geek to the conversation with opposing parties when appropriate.

If you do not have a geek, here are some simple tips and items to consider in preparing for a form of production conversation:

• Will your production contain exotic data types such as software code or engineering data?  If yes, talk to the technical person responsible for handling that data type to determine what your production options are.
• There are three common forms of ESI production:  (1) native, (2) convert to image, and (3) hybrid.  Hybrid productions consist of both native and imaged documents. The table below explains and shows the core pros and cons of native and image productions.  Which option(s) is most fitting for the case/data at hand?

• Consider how you will handle document families that contain both responsive and non-responsive or privileged items (e.g., a responsive email with non-responsive attachments).  One common method is to produce only the responsive item(s) and produce a placeholder for the non-produced item stating the reason for non-production.
• How do you plan to deal with duplicate and near-duplicate data?
• If producing in image format, will you provide metadata?  If yes, what metadata will you provide and in what form?
• If producing in native format, how will you manage document control (Bates numbers, confidentiality designations, etc.)?
• If producing in hybrid format, which items will be produced natively versus in image format and why?
• Will you use metadata to create a privilege log?  If yes, what supplemental information will be provided (e.g., additional descriptors)?  Will you log every string in an email chain?
• Be prepared to explain these options to your opposing counsel – particularly if they are not ESI savvy.

A discussion between parties on form of production really isn’t that difficult. So, why don’t we do it more often?

eDiscoveryJournal Contributor – Mikki Tomlinson