EDiscovery and the Pitfalls of Rolling Productions

In EDiscovery, the rolling production refers to the practice in larger litigations of splitting the production of email, data from databases, documents from file servers, paper, mixed media such as video and audio and webcast presentations, etc. into different productions over an extended period of time.

While Production Logs, Production Letters, and Privilege Logs are all intended to make sense of the process, there are some key items that can alleviate much of the pain such that the producing party is not peppered with clarification requests and the receiving party does not feel as if the production is being steam-rolled over them.

Starting at the Source

Start at the source with the collection of the data and documents by the Producing Party.

As data and documents are worked up for production, they should be tagged in the review software to what requests they are responsive.

Producing Parties should maintain a Request Log that lists the Interrogatories, RFPs, informal requests, internal requests, and Court Orders, really anything that triggers the production of specific data and documents.

The Request Log should contain:

1. a unique identifier for the request (short readable name)
2. references to the original request (ex: RFP #6 made June 12th, 20xx)
3. whether responsive data / documents have been collected and the first and last dates of collection
4. whether data has been reviewed for privilege / redaction and approximate amount remaining
5. production numbers which contain the data and documents responsive to the request
6. whether the request is still considered open (and percentage pending if available or a broad based estimate — i.e. “more than fifty percent”)
7. estimated date to fully complete the request
8. whether the request was duplicative of another request
9. longer form response to the request

I am an advocate of sharing a very lightly edited version of the Request Log with the receiving party on a regular basis.

Better Production Letters

Too often production letters are rushed out and contain no more information than enclosed is a production with the following Bates ranges, please contact us with questions. That’s insufficient.

It is not obvious to a receiving party what has been produced. Even a simple production, for example emails from a specific individual, may be very difficult for a receiving party to understand, especially if the emails are being produced from an archive.

Productions letters should always include:

1. a unique identifier for the production
2. requests being answered by this production
3. bates number ranges corresponding to those requests when able to be provided
4. whether the request is completed with this production or whether a substantial portion is still undergoing review
5. a separate section detailing parts of the production that are updates to previously produced data and documents
6. MD5 or equivalent hash value to authenticate the media

The producing party should keep an archive of all production letters.

Good software should be able to template these letters and fill in much of the details. The production letter should be part of a formal process instead of created ad hoc.

Handling Samples and Attorney Eyes Only Interim Productions

Sometimes there will be productions outside of the formal process. These productions might be assigned informal Bates numbers with an alternate prefix. Examples of this type of a production might include a sample report sent via email or informally shared via a Cloud service.

These types of productions should not be casually handled. Attorneys in the producing party should be trained on how to deliver this type of material and if necessary this protocol should be part of the formal protocol on production.

For each interim production:

• include an interim production letter with the Bates, the reason for production, and a MD5 hash or equivalent that can be used to distinguish interim materials from formal productions
• prefix interim materials with NFP (NOT FORMAL PRODUCTION) and make sure native files include this designation as part of their file names, and imaged files include NOT FORMAL PRODUCTION — ATTORNEY EYES ONLY or the equivalent

Keeping Better Track of Updates

Rolling productions frequently include updates to prior productions:

• documents reproduced with additional redactions after clawback
• documents reproduced with fewer redactions after a challenge
• new versions of documents
• additional emails for a custodian including new emails for a previously produced thread
• updates to data in databases, which sometimes might include reproduction of the entire database
• documents that should have been produced in a prior production, but that were held pending a privilege review or redaction review

While it is fairly common practice to alter the Bates numbers to indicate a replaced document, often that is not clear enough, especially when a document is updated not simply once, but multiple times.

If there are clawbacks, then those should be explicitly mentioned and listed in the production letters along with any dates of first notice.

Central Storage of Production Letters, Logs, and Materials

This simple step is often overlooked on both sides.

There should be one place where any litigant, specific expert, litigation consultant, paralegal, and trusted vendor can go to find an archive of production letters, logs and associated materials.

While universally available, it should have tight controls such that only a few people have permission to add new letters.

Quite too often, attorneys scramble to determine answers to simple questions:

• has it been produced?
• in what production is it?
• has all of it been produced?

Relatively simple measures on both sides will greatly reduce the frictions felt on these points, and will be easy to cite, common shared references when standing in front of the Court.

about me

Since 2000, I have been helping attorneys navigate rapidly changing technology landscapes supporting the needs of litigation from negotiating protocols for ESI production format to performing forensic gap analysis and analysis on esoteric database and system productions.

If you need assistance with the technological challenges surrounding EDiscovery, please reach out directly to jjaffe@its-your-internet.com.

(c) Copyright 2016. All Rights Reserved. Jonathan Jaffe, Founder, 
www.its-your-internet.com.