Electronic Production Checklist
It’s a Friday afternoon and your weekend is about to start…and yes - you guessed it…a last minute production request comes in and your plans are no longer the same. Because of court orders and agreed-upon deadlines, productions tend to take priority over other data-related tasks. And because of ESI orders with specific production specifications, privilege issues and confidentiality concerns, productions require an extreme level or care. Like many other e-discovery professionals, I’ve been in this position too many times to count. To ensure that I remember all of the various conditions that should be considered and checked and double-checked in preparing productions, I recommend using a checklist to make sure you are top of all of it!
Why Are Productions Complicated?
Although electronic productions take up a single step in the Electronic Discovery Reference Model (EDRM), they are complex. No longer do we simply add a bates stamp to a scanned pdf and send it off to opposing counsel. In today’s high tech litigation, we’re often producing thousands of documents at a time, in multiple different format, and often with multiple levels of privilege and complex redactions. Focusing on quality control details is incredibly important.
Key Points to Consider
For the reasons identified above and many others, I keep a checklist of key points when preparing a production. I’ve included this checklist at the end of this blog. In addition to the items on the checklist provided below, you should also consider the following:
#1: Format
At the outset of the case, the parties should discuss what formats of production are possible and appropriate, and what formats can be generated. Any format selected for producing discovery should, if possible, conform to industry standards. The parties should discuss what metadata should be produced and which file types should be imaged and which should be produced in native. The parties should also think about what documents may need to be produced in color. The requirements for electronic productions should make sense from a legal standpoint as well as from a technical standpoint. In most cases, the format will be described in detail in the ESI protocol.
#2: Volume
At the outset of the case, the parties should disclose the potential volume and whether they plan to send rolling productions. When preparing a production, the producing party should also evaluate how the production will be delivered based on volume (e.g., hard drive or secured ftp site?).
#3: Third Party Productions
Electronic discovery received from third parties may be produced in the format in which it was received, but if it hasn’t been processed or bates stamped, consider whether you should undertake those steps to ensure the documents are useable and consistent.
The Checklist
An electronic production is a crucial step in the Electronic Discovery process and if it is not handled correctly, all the diligence and time spent in the earlier phases could be for naught. So, it is important to plan for and communicate about the production with the legal team at the outset and to apply quality control checks against the production sets to ensure the end result meets all the requirements, deadlines and expectations.
|
Specifications |
Checklist |
|
Load file for metadata |
o Does your client have a standard list of metadata fields to produce? o Is there an ESI Agreement, subpoena or other agreement that provides specifications for metadata? o What are the load file requirements and delimiters for metadata? o Are there any redacted documents that require redactions in the load file? |
|
Load file for images |
o Is there an agreed upon format for the load file? (e.g. DII, LFP, OPT, etc.) |
|
Searchable Text files |
o Is there a specific format for these files? (e.g. multipage text files or single page text files) o Is there a maximum number of files per folder? o What is the naming convention for the text files? o Do redacted images have redacted text files? o Are there foreign language documents included and is the text for those documents accurate to produce? |
|
Single Page Tiffs/JPGs |
o What are the specifications for images? The standard format is tiff files for black/white at 300 DPI and color images should use a color format (jpg). o Is there a maximum number of files per folder? |
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*PDFs |
*If recipient does not have an e-discovery software tool, they may request pdf productions, which do not require load files, texts or additional images. o One pdf per document (preferred format as it establishes document boundaries) o Bundled PDF |
|
Native files |
o Are there guidelines for the production of native files? o Does the production set include files that are not created for printing? (e.g., spreadsheets, databases, audio, video, etc.) o Does the production set include files that are created by non-standard software? (e.g., drawings) o If the requesting entity asks to produce all files in native format, discuss with the legal team/client and revisit the requirements and format for redacted documents. |
|
Sources |
Checklist |
|
|
o Are attachments included? o Is the coding and branding consistent and sequential for emails with attachments? o Do you need to check the email indentation output on images and text files? o Are there embedded objects, logos or inline images in your set? |
|
Phone |
o Are text messages being produced on a spreadsheet or as separate files? o What is the format used for text messages and corresponding attachments? o Are the metadata fields mapped to regular production fields or do you need to produce additional fields? |
|
PC or Network |
o Is the source for these files and custodian documented in a field? o Do you need to check the file extensions and file types to provide native files for unknown extensions? o Are there embedded objects in the data set? |
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Archival Systems |
o Are you including emails from an archival system? o If so, are the attachments to those emails available and linked to the emails? |
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Databases |
o What is the exported format of the structured data sources? o Are there additional field names or field values that need to be added to the standard metadata fields? o Are you including standard "canned" reports in the production? |
|
Social Media |
o Are the file sources documented on a field? o Are there additional fields that need to be added to the standard metadata fields? |
|
Details |
Checklist |
|
Sort Order |
o Is there a specific order for the production? (e.g., by custodian? request number?) |
|
Group Treatment |
o Is the coding and confidential designation consistent for emails and attachments? |
|
Privilege |
o Are there any documents marked privileged? Are there privilege redactions? |
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Confidentiality |
o Is there a Protective Order entered or drafted? o Are there different confidential levels? o Is there a specific phrase for the confidential stamp? |
|
Redactions |
o Are there any image redactions? o Are there any native redactions? o Does the text and metadata need to be redacted as well? o Are there any PII redactions? Non-responsive redactions? o Do you need to confirm the color of the redaction labels or if they should display a text phrase? |
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Slipsheets |
o Are you including slipsheets for redacted documents? o Are you including slipsheets for privilege documents? o Are you including slipsheets for non-responsive documents? o Are you including slipsheets for certain file types or processing errors? o Do you have different phrases to use on the slipsheets? |
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Exceptions |
o Are there any file extensions that do not image well or that generate many pages with irrelevant text? o Are there any password protected documents in the set? o Are there any 0 kb files? |
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Bates Number to use |
o Confirm the starting number (check if there are gaps in the bates sequence to use) o Confirm the number of digits o Confirm the prefix |
|
Volume Name/No. |
o Confirm the production volume name or number o Check for gaps and consistency with previous production volumes’ requirements and format |
|
Delivery Options |
o Is there a secure file transfer site? o Do you have a methodology to encrypt the files? |
|
Recipient |
Checklist |
|
US Law Firm |
o Confirm the format with the recipient |
|
SEC |
o Check the SEC data delivery standards |
|
DOJ |
o Check the standard specifications for production of ESI used by the DOJ |
|
Outside of the US |
o Data privacy concerns and restrictions may impact non-US jurisdictions so check with counsel for local requirements |
DISCLAIMER: The information contained in this blog is not intended as legal advice or as an opinion on specific facts. For more information about these issues, please contact the author(s) of this blog or your existing LitSmart contact. The invitation to contact the author is not to be construed as a solicitation for legal work. Any new attorney/client relationship will be confirmed in writing.
