BIA is committed to ensuring ongoing quality service during the COVID-19 pandemic.View

Using a Production Protocol: Keeping the PRO in Production

Production Protocol: Keeping the PRO in Production

Have you ever watched a sporting event where someone who thinks they’re going to win the race or score that touchdown starts celebrating early and then ends up losing? It happens in running, volleyball and many other sports.

It also happens in eDiscovery. Sometimes companies make it all the way through the whole eDiscovery process, only to get hung up with production. They’ve spent a lot of time making sure data collection happened smoothly, that the data was culled correctly and that the reviewers found the relevant data. Everyone is feeling pretty good about the way their eDiscovery services are going. Then comes…Production. Dun dun duuuunnn.

Don’t let this last step of the process slow you down. Here are three key reasons to start using a production protocol so that you can cross the finish line in style…and in time.

You set the tone early.

Sometimes clients come to us later in the discovery process when they realize they need to produce documents they have collected and reviewed. Regardless of the stage, we can jump in and help them complete productions in the required manner. Nonetheless, we maintain that production preparation doesn’t have to come as a surprise.

Usually, that sudden flurry of production-related activity is the fault of the inadequate ESI production protocol. Or worse, the absence of one.

Meet-and-confer conferences that occur near the beginning of litigation are the perfect time to discuss production methods, timing, and details. This will help you set the tone early in the matter regarding eDiscovery services and production expectations. Following that conversation, the agreement should be memorialized in a court-filed document and signed off by the magistrate or judge.

You ensure discovery is consistent and usable.

An ESI production protocol guarantees that each party to a matter provides discovery in the same way. The protocol should cover at least these three topics:

  1. The form of production

    Forms of production often include considerations for TIFF or PDF images, extracted and OCR’d text, native file productions for certain file types that do not lend themselves to imaged productions such as spreadsheets, or those that are meaningful only if produced in color (often a concern with PowerPoint files). Typically, it is not recommended to produce email natively, due to the “live” nature of the document and issues related to attachments. Other considerations include Bates numbering and confidentiality stamping guidelines, delivery preferences (i.e. by FTP, particularly now with COVID-19 issues) and more, as required by specific matter circumstances. FTP transfers should be password protected.
  2. The timing of production

    Timing is somewhat self-evident based on case management orders. However, it’s still important to spell out when the initial production is due, as well as how to handle rolling productions until the matter is completed. Production timing of the privilege log and any supplemental productions should also be addressed. The written production protocol helps to set expectations by all producing parties.
  3. The details of production

    While the form of production (above) gets into some of the physical specifics of productions, this step gets into the nitty-gritty details. For example, it often includes a list of metadata fields to be produced and what level of de-duplication will be used (i.e. intra-custodian or cross-custodian). If de-duplication across custodians is part of the protocol, then the protocol should also require an “All Custodian” or “Secondary Custodian” field to allow the parties to identify which de-duplicated custodians had the same document. Those are just some of the more technical details that can and should be addressed.

Save time and expense by using a production protocol.

Having an agreed-upon game plan for your productions from the outset also will save expenses because all parties will start on the same footing. You’ll also save time by minimizing production-related questions and issues. There will not be a fire drill because of an unexpected production requirement or misunderstanding. Each party, if they follow the guidelines set forth in the production protocol, will proceed with little interruption by opposing counsel because each side will produce according to the established ESI production protocol.

You will also save money because you will have thought through issues early in the discovery process. For instance, if you know that certain data only exists in a complex database, the parties may agree that the production of such information can only be made through the reporting function available for that database. Addressing this in the production protocol saves the expense of litigating the adequacy of the document production from such a data source. Another example is the treatment of confidential information in intellectual property (IP) matters, which can be a dear asset of the disclosing party. It’s critical to outline the appropriate stratification of confidentiality, which may use codes like “Confidential,” “AEO” or “AEO Outside Counsel.” It can help to use a custodian questionnaire at the outset of the discovery process to reveal these and other issues that can then be addressed in the ESI production protocol.

Bottom line: A good ESI production protocol will help anticipate and address potential issues in a matter, thereby saving you time, money, and unnecessary risk. BIA has worked with our clients to help craft the appropriate protocol for thousands of matters, and we can help you prepare yours. Contact our advisors about how to best handle your case.

With a strong production protocol, you will reach the eDiscovery finish line quickly and gracefully, saving time and money along the way.

Barry Schwartz, Esq., CEDS

Barry Schwartz, Esq., CEDS

Barry Schwartz, Esq., CEDS leads the advisory services group at BIA using his 25 years of experience as a litigator and consulting expert witness. As a client-facing senior advisor, he assists clients in a wide variety of areas including litigation and discovery, data retention & management, document review, regulatory compliance, privacy and cybersecurity.