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eDiscovery Production: Negotiation Considerations

Negotiations about the form in which the production of documents by all parties will be made should have already occurred by the time documents are being prepared to be produced. Federal Rule of Civil Procedure 26(f) requires that parties meet and confer at least 21 days before a scheduling conference regarding any issues related to disclosure or discovery of electronically stored information, including the form in which it is produced.

Parties must therefore discuss and plan for the production of documents in the initial stages of the litigation. From a practical standpoint, the determination or agreement about the form of production must be made at the initial stages of the electronic discovery process to ensure the chosen form is still an option after the collection, processing, and review is complete.

Under Rule 34(b), a requesting party may specify the form of production. If it fails to do so or if the responding party objects to the requested form of production, the responding party must state its intended form of production in its response to discovery requests.

A Committee Note to Rule 26 states that "parties may be able to reach agreement on the forms of production, making discovery more efficient." To reach such an agreement and to know in what format - or formats - to request production, it is important to fully understand the types of documents available for production, the nature of those types of documents and how those factors will impact your ability to discover the knowledge you need to address the issues in your lawsuit.

Factors to Consider

In order to successfully negotiate the form of production, a few factors should be considered. They include a set of specific questions as well as a group of other considerations.

Specific Questions To Consider During Negotiations

1. How Will Paper Documents Be Produced?

In spite of the fact that electronic documents have taken the front seat in discovery, paper documents still exist and must be considered during the production process. Ultimately paper and electronic documents will be used in the same manner throughout the post-production discovery process, and they should be produced and integrated in a way that will facilitate their use. Some questions to be answered might include:

  • Will you want hard copies or images produced to you? Images can be loaded directly into a database without the issue of receiving, storing and imaging large amounts of paper.
  • Will the producing parties be scanning and OCRing (Optical Character Recognition) the paper document productions? If so, reaching an agreement that each party will produce images and OCR text for their production and that the parties will share in the costs may be an option that will save all parties time and money.


2. What Types of Electronic Documents Make Up the Data Set?

There may be word processing files, spreadsheets, email, databases, drawings, photographs, data from proprietary applications, website data, voice mail, and much more. To understand what data should be produced in light of the issues specific to the subject case, it is necessary to understand what information is available in the different software applications (or types of documents). Such preparation mitigates the risk of discovering too late that the agreed-upon production format is inadequate to provide the discovery needed to address and understand the issues in the lawsuit.

3. What Formats for the Production Documents Provide Access to the Data Necessary to Best Address Issues in the Case?

To be sure the necessary data and information is produced in order to allow thorough analysis of the discovery documents, it is critical to understand how different types of documents are impacted by different processing and production format options. For example, formulas are not viewable when spreadsheets are converted to image; blind copyees and the date read are not available when emails are converted to image. The determination of whether or not that type of information is necessary should be made early in the discovery process. Considering in advance what options are available and determining the most useful production format for each data type is essential for negotiating production options.

4. What Types of Media Should Be Used To Produce And Receive Production Documents?

There is a wide variety of media on which data can be stored and delivered. These might include CDs, DVDs, portable (external) hard drives, or flash drives. The choice of media can significantly impact the amount of time and expense that will be involved in analyzing and processing the data. It is possible that a particular type of hardware will be necessary in order to access and process the data. For example, a hard drive can hold a significant amount of data but will require a certain level of expertise and specific hardware to handle properly. If a large amount of data is being produced, it may be better to receive the data on a hard drive and invest in the expertise and hardware necessary to handle that medium than to spend the time handling tens or hundreds of CDs individually.

Other Considerations

While negotiating with other parties about how data will be produced, there are factors that must be considered by each party's internal legal team that will impact the negotiations with other parties. Some include:

Production Capabilities and Limitations

As previously discussed, at the very inception of the discovery process, consideration must be given to how the electronic data will be processed and produced. Will a third party service provider, outside counsel's litigation support department or the in-house litigation support department handle the technical work? It is important to understand the capabilities (and limitations) of the service provider or litigation support department that will be processing the electronic data, but don't forget to explore those issues as they relate to preparing the final document production. Be sure the chosen group can actually produce documents in the format agreed upon during negotiations and that the production process can be done timely. Discussions with the service provider or litigation support department who will be providing the technical services and support to produce documents will ensure that the requirements for the format or formats of the production can be met. This will also reduce the likelihood of delays resulting from surprises during the final stages of production.

What Technical Formats for the Data Will Be Needed by Each Party?

Technical formats are different than production formats. As discussed elsewhere in this node, production formats relate to the forms the production documents will take - images, native files, full text, metadata, paper, etc. Technical formats refer to the technical components that allow access to data that has been produced. Each receiving party will probably have different requirements for the type of load file needed to add the data to its litigation support database. A load file provides technical information or programming to allow each component (i.e., images, full text, metadata fields) of the electronic production to integrate or work together. Essentially a load file connects the different electronic components of a document so all the components can be viewed together.

Different litigation support databases require different configurations for the data and load files. If all parties have communicated about particular load file requirements, productions can be made providing components (e.g., images, full extracted text, selected metadata fields and a specific load file format) that are readily useable by each receiving party. This simple effort will result in saved time and money for each party receiving production data.

Communication Between Parties

Unless there is an expectation of and vehicle for communication between the parties about production issues, each party will be reacting to the unexpected throughout the discovery process, rather than planning for and managing the production and receipt of data. During negotiations and throughout the discovery process, communication between representatives from each party with technical knowledge about the data of the party they represent will make the production process more efficient and, therefore, less costly in time and money. The representatives may be from the service provider, from the outside counsel's litigation support department, a paralegal or an attorney from either the corporation or the outside counsel's office, IT personnel from the corporation or other. The purpose of these communications is to share information about what will be produced by each party and should include discussions about the technical specifications for the format in which each requesting party will require data to be delivered. It may be necessary to have ongoing communications to address unexpected issues as the production process ensues. It is a waste of time and money to produce documents in a format that is not usable or will require further processing by the receiving party. Because there are so many variables and options for formatting production documents, it is not possible to accurately know what the requesting party will need or want without communicating about it ahead of time.


Using a Forensics Expert

If metadata is an issue in your lawsuit, you should consider consulting with a forensics expert as early as possible in the lawsuit. Experts will most likely be called upon to validate and interpret the metadata. The earlier the expert is involved the better to prevent the loss or oversight of vital data.

Meet and Confer

If the nature of the litigation makes specific metadata fields important, there should be a conference to identify all the possible metadata fields based on the actual data. Determine the factors that may influence the content of that metadata. These can include:

  • Collection of data,
  • Server crash and restore,
  • Time zones,
  • Configuration of software (i.e., author may be the name of the corporation for all documents).


Identify which metadata fields should specifically be requested. Making this request in the Request for Production. Identifying it as an issue in the original preservation letter will enhance your ability to receive what you need.

Considerations for Producing Metadata

One of the key issues to determine and negotiate early in a case is whether the documents' metadata is considered an integral part of the case. This will impact how the documents are collected and reviewed. However, if the documents have been collected or reviewed in a manner that altered metadata, the form of the production may be impacted.

If metadata is considered an issue in the case, then two forms of production are options: native file or image format with extracted data, including metadata and the full text of the file.

If metadata is not an issue in the case, then there may be more options as to the form of production and whether any of the metadata fields will be produced. Typically, you should be prepared to produce in the same format in which you request to receive documents.

If you receive extracted fields of data (e.g., for emails - author, recipients, date sent, subject) and metadata fields (e.g., for e-docs - creation date, author, date last modified, title) you will have the beginning of a document database that provides the basic information listed above plus the relationship between emails and attachments, the original path of the document, and the source of the document. Receipt of this data from the producing party will save time and money throughout the discovery process for the requesting party.

Consider how documents will be used throughout discovery and during presentation.

The decision to request and produce extracted data and metadata will be influenced by the manner in which the documents were collected, processed and reviewed. If the data was not preserved, the data produced may reflect the dates collected or reviewed as the creation or modification dates, which will be misleading and may raise questions about the collection, processing and review process.

Basic extracted data and/or metadata fields to consider requesting (and, therefore, providing) include:

  • E-documents:
    • Creation date
    • Date last modified
    • Author
    • Title
    • History of changes
  • Email:
    • Author
    • Recipient(s), including cc and bcc
    • Date and time sent
    • Date and time received
    • Subject
    • Attachment relationship to original email (and metadata fields listed for e-documents)
    • Forwarded e-mails; attachment documents and files


Rolling Production

A rolling production is a negotiated schedule for producing data in stages rather than all at once. It should be negotiated in circumstances where a party has a lot of information that has to be reviewed and produced in a short timeframe. Some considerations include:

  • A rolling production will allow you to initially receive a sample of the production, providing you an opportunity to identify issues early in the production, allowing problems to be remedied before all the data has been processed and produced.
  • If depositions are approaching or users need access to the data immediately for some reason, they can begin reviewing data without having to wait until the entire production is completed.
  • Prioritize the order in which the data will be processed and produced on a rolling basis. Request that critical custodians' data or those whose depositions are scheduled be processed first.
  • There must be a process in place to manage the review of documents produced on a rolling basis to prevent the possibility that reviewers will review the same documents multiple times or worse, miss some documents. For electronic document reviews, duplicate documents are very common, especially when reviewing multiple custodian email boxes or if backup tape data is part of the review. During the processing phase, these documents can be "de-duped" out--which is a method where exact duplicates can be either deleted from the document population or suppressed during the review. De-duplication is cost-saving method in processing, review and production, but there are certain circumstances where duplicates may need to be produced. An example of this would be if a custodian's mailbox needs to stay intact for an investigation. If the emails are de-duped out of the mailbox, the mailbox is missing those emails.


Production Media Types

Production media types include:

  • CD, DVD
  • Hard drive
  • Web Hosted - A hosted production is one in which the documents are hosted by either a third party or an extranet site that is negotiated between the parties. This may be a good option to provide security and control of all the documents (e.g., production to a regulatory agency) or in a class action with multiple parties receiving the same data. Another benefit is that costs for hosting the documents could be shared between parties. In this scenario, the documents can be hosted, each party has secure and separate log-in access to the data sets being produced to them, and the receiving parties can review and designate the documents they want and the format in which they will receive the documents.

Source: EDRM (

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