Production of Potentially Relevant ESI: Seek Agreement Regarding a “Reasonably Usable” Format
Production of potentially relevant electronically stored information (or ESI) – whether in the context of litigation, subpoena response, or investigation – normally occurs at the “right side” of the Electronic Discovery Reference Model (or EDRM). This makes sense, as one cannot produce ESI until potentially relevant records have been identified, preserved, and collected, or until they have been processed for review and analysis.
Even though the actual production of ESI is one of the final steps in the EDRM process, the planning for and agreements concerning production should be among the very first tasks undertaken by counsel near the beginning of each matter. In fact, a negotiated “Agreements” or “Protocols” block – one that would reference the details of how ESI will be produced in a given matter – could easily be added as a “left hand side” consideration of the EDRM.
As 2017 comes to a close, I’ve provided thoughts concerning the major steps in the EDRM, including the identification, preservation, collection, and review of ESI. When it comes to the production of ESI, consider the following.
- Rule 26(f) of the Federal Rules of Civil Procedure (and many state court analogs) require parties to meet and confer about a range of pretrial and especially discovery issues. In particular, Rule 26(f)(3)(C) requires parties to discuss “any issues about disclosure, discovery, or preservation of [ESI], including the form or forms in which it should be produced.” As required by the rule, come to such meet and confer sessions prepared to discuss in detail how your client intends to produce the ESI it reviews. In fact, it’s often wise to come to such sessions with a draft, written ESI protocol that can be shared with opposing counsel and that addresses (among other things) the format and other considerations for the production of ESI.
- In preparing for your Rule 26(f) meet and confer session – and certainly before drafting your ESI protocol – don’t forget to speak in some detail with your client and your client’s IT department about the nature and accessibility of the ESI to be produced. The last thing any attorney wants to do is to make representations or promises concerning the production of ESI that can’t be reasonably achieved.
- In most cases, it’s best to agree on a reasonably usable production format that includes static TIFF images, a load file that contains negotiated metadata for such images, and the extracted text for such images (to facilitate searching). Reserve native productions for certain limited file types (such as spreadsheets that often don’t reduce to static images well) or those cases where the authenticity of certain records may be in dispute. Static images that can be labeled with a unique production number and a confidentiality ledger, as agreed by the parties, will be much easier to use for depositions, motion practice, and hearing or trial exhibits.
The eDiscovery consulting practice at Level 2 Legal welcomes the opportunity to advise attorneys, paraprofessionals, technologists, and their clients concerning all aspects of litigation readiness and the EDRM, especially including the production of ESI and other materials. Click below to learn more.