Shira Forman ()
As recently as 10 years ago, a junior litigator assisting in a document production might have spent endless time in a conference room, amidst boxes and boxes of papers and files. Today, the work of preparing documents for production is more likely to involve plugging search terms into a computer database. Regardless of the method, document production continues to be an essential part of civil litigation, and it often falls to the most junior lawyers to make it happen. Here are some guiding principles to aid the process.
One Aspect of Discovery
Document production is one element of discovery, the process by which the parties to a litigation exchange relevant information that can be used as evidence and for the purpose of evaluating the merits of one’s case. Through discovery, parties narrow the issues in the litigation and come to anticipate what evidence will be introduced at trial.
Among the most common forms of discovery are depositions (oral, out-of-court interrogations of witnesses under oath); interrogatories (written questions that are required to be answered under oath); requests for admission (written statements that a party is required to “admit” or “deny”), and document production. Document production refers to the exchange of documents and materials in response to specific written requests for production.
Requests for Production
In a request for production, one party (or, in some cases, a non-party) requests that another party produce the documents and/or evidentiary materials listed. Production requests tend to be broad (e.g., “All documents relating to any communications between plaintiff and defendant regarding the service contract.”). They will generally include a list of definitions and instructions that provide parameters for the production. The definitions, like the requests themselves, are usually broad and designed to encompass a wide cross-section of materials. A typical definition in a production request might state: “‘Communication’ means any and all discussions, conversations, meetings, negotiations, telephone calls, letters, correspondence, notes, facsimiles, electronic mail, memoranda, writings, or other forms of communications, including but not limited to both oral and written communications.” Bear in mind that you are not required to produce anything that falls outside the scope of the defined terms or the relevant time period designated in the request.
Often, parties discuss particular requests and come to an agreement to modify or narrow them. In federal litigation, parties are required by Federal Rule of Civil Procedure 26(f) to confer before the first scheduling conference to discuss, among other things, a discovery plan and “any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced.” In addition, Federal Rule of Civil Procedure 37 requires a party filing a motion to compel discovery to certify that it “in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” Often, parties are able to use these conferences to negotiate their way to a more streamlined and economical document production process.
Reviewing the Documents
The next step, once you have received a document request, is to determine what materials your client has in its possession that are responsive to the request. In large, complex litigations, it is often helpful to reconfigure the production request into an easier-to-understand “cheat sheet” that is devoid of legalese and complex terminology. Using the cheat sheet as a guide, your client can set out to find responsive documents.
The culling and review of documents for production is the most labor-intensive part of the process, and how it proceeds will depend on the specifics of the case – the business and size of the client, the types of documents requested, and the nature and scope of the litigation, among other considerations. Most often, in today’s litigations, the bulk of the responsive documents exist in electronic form. Initial assembly of electronically-stored information (ESI) usually involves the use of relevant search terms to create a narrow universe of documents for further review. Many parties find it helpful to agree with the opposing party at the outset on acceptable search terms, document custodians, and time periods to guide the search for ESI. Note that there are voluminous court rules and case law involving the preservation and production of ESI; a full discussion of the complexities of e-discovery is well beyond the scope of this article.
Once documents have been gathered, they must be reviewed. This process, too, will vary depending on the specifics of the case, but some general principles apply. First, it is best to have multiple layers of review by different reviewers. Often, the review is divided into a first-line review, second-line review, and a final review just prior to production. Some clients, when dealing with large volumes of ESI, hire outside vendors to conduct one or more layers of the review. It is important, in these cases, for attorneys to supervise the review and provide as much instruction as possible to the reviewers in order to maintain the integrity of the review process.
In reviewing documents, you (and/or other reviewers) should, of course, be looking for documents that are responsive to the request for production. To that end, it is helpful for those reviewing to understand not just what is being demanded in the document request or on the “cheat sheet,” but also what the case is about: Who are the key players? What are the main issues in contention? What is your litigation strategy? Be proactive about reviewing the pleadings and asking questions to make sure you have a clear understanding of the facts before you start making decisions about the responsiveness of documents.
Just as important as identifying responsive documents is knowing which documents should not be produced. Every document review team must make decisions about which documents should be withheld based on attorney-client privilege and other applicable privileges. Decisions also must be made regarding confidentiality and which documents should be withheld or designated confidential. These determinations, like every part of the document production process, benefit from a combination of careful planning and scrupulous attention to detail.