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Rule 34 and the Internet: Innovative Solutions to Current Production ChallengesImagine there’s no production disputes, 3/1/2010 Open PDF: Rule 34 and the Internet: Innovative Solutions to Current Production Challenges Can you imagine . . . document and ESI productionswhere there is no fight about the form of production, where both sides know the exact status of review and availability of information deemed responsive,and where privilege logs are created ‘‘on the fly’’ in response to any and every query posed? The need to find a better way is not an academic pursuit. One recent survey of 2009 opinions addressing e-discovery issues noted that of 108 reported opinions identified as ‘‘significant,’’ 27 percent involved various production issues and disputes. Stated otherwise, one out of our contentious e-discovery motions that resulted in reported opinions in the last year involved production disputes! Lessons From the Bench. The recent case of Cenveo Corp. v. S. Graphic Systs.[1] is illustrative. In response to a Rule 34 request, plaintiff produced ESI in .pdf format despite defendants’ request for production in native format. In the motion response, plaintiff argued the term ‘‘native format’’ was undefined. Not persuaded by that notion, the court found the term ‘‘native format’’ was unambiguous and granted defendants’ motion to compel the production (and re-production as was necessary) of electronically stored information (ESI) in native format. Although the argument is often made, litigants cannot credibly argue that ‘‘native production’’ is a ‘‘must have’’ for all cases. Indeed, the court in Bellinger v. Astrue,[2] recently refused to compel production of ESI electronic form because existing hard copy was a reasonably usable format, because production in electronic format would be burdensome, and because plaintiff’s counsel was already familiar with the hard copy production, making production in electronic form ‘‘redundant and wasteful.’’ Meet and Confer MIA? In both cases, where was early meet and confer? Where was the sensibility finding common ground? Discovery positions like those taken in Cenveo and Bellinger and the resulting motion practice are simply unnecessary and waste party and judicial resources. Moreover, a party refusing to confer and negotiate production resolution with the opposing party loses control of its ‘‘production destiny.’’ A common result that a judicially-imposed resolution leaves the party a far worse position than it could have reached on own through negotiations. A better production process is not the figment of distant imagination but can be reality in 2010 and beyond for those parties daring to consider a new approach. The technology that enables such web-based productions has been around for more than a decade. What must catch up is the legal thinking, creativity, and execution. The Platform. Practically any case of magnitude today involves the collection of paper document and ESI and the internal or external hosting of data on a computing platform that allows access (usually via secured internet access) for people to review, mark, organize, and code the information. Despite this significant presence of the web as glue that holds all of the processing, hosting, and review teams together, there are precious few reported cases where one side or both parties rely on an internet repository as the production tool.[3] On the other hand, the majority of cases that have been cited regarding the use of internet repositories the mass tort or multi-district litigation cases[4] that conjure up the image of the ‘‘mega case’’ and likely leaves the impression that internet-based productions are only for the ‘‘bet the company’’ matters. The reality is that technology exists today that allows for the hosting of imaged documents and native ESI review and production purposes in a wide range cases. And the technology is reliable and relatively affordable. The critical components you need to look are:
The Benefits. If the parties can agree on a common hosting, review and production platform, then there are a multitude of possible benefits. First, there should be no dispute regarding the form of production. The vendor will render content viewable in the same manner for all parties to the dispute. The vendor will also have the same tools for downloading or printing for all parties. Everyone will be on the same playing field—which is exactly what the rules contemplated. And the parties will preserve the relevant information in native format in case there is any dispute regarding provenance or metadata down the road. Second, the platform will treat native files, scanned and coded documents, and OCR’d documents identically for all parties. If documents need to be redacted, the process would be uniform, as would be the display of images with redactions. Again, no difference/no dispute.
Fourth, if the parties are willing to agree to the searchability of potentially privileged documents (i.e.,you can run searches against the contents but the display results will not show any contents but only the objective information that would typically be available in a privilege log), then there will be a greater ability to achieve the goals of 26(b)(5) (i.e., the requesting party will have a better idea of what is being withheld without invading the privilege) and concurrently reduce the time and expense associated with traditional privilege logs. Of course, an investment will still be required to flag such objects as potentially privileged with some measure of analysis to identify the applicable privileges, but the overall effort needed should be greatly reduced. The number of privilege assertions ultimately subject to challenge should also be reduced. Fifth, the use of a common platform and vendor can help the parties and court better understand the costs of production and provide a means to allocate those costs equitably among the parties. This can also help reduce or eliminate satellite litigation regarding costs and costsharing. They also noted that such an approach is part of a strategic embrace of The Sedona Conference Cooperation Proclamation, which has been endorsed by numerous judges across the country. For organizations facing serial litigation, the benefits of a uniform Internet depository approach to satisfy production obligations noted above start to multiply quickly. The Process. For those parties and counsel with the foresight to venture into web-based productions, the process is relatively straight-forward. First, explore the technical feasibility of placing your documents and information onto a web-based review and production platform. Ask detailed questions of vendors regarding capabilities and, especially, security. Ensure that the requisite level of confidentiality can be maintained. Also assess the vendor’s track record in providing web-based productions. Second, discuss with your client the relative risks, benefits and costs of a web-based production. Make sure that you explain how the data will be stored, managed and produced. Discuss how privileged documents will be identified and handled. Explain the risks of inadvertent productions and the steps that will be taken to avoid inadvertent productions as well as the measures that will be in place to address inadvertent productions. Third, approach opposing counsel to agree upon a protocol for production via a mutual web-based platform. Go into the discussions with a specific proposal as to how the parties will collect information to be fed into the web-based repository. Address the knotty issues,such as how to handle redactions, privacy and privilege claims. You also need to include a discussion about, and agreement regarding, the confidentiality of communications with the vendor and the non-waiver of any privileges that may be associated with such discussions. If opposing counsel rebuffs the offer, consider whether you want to use the web as your production vehicle unilaterally. If all parties agree, document a specific protocol that will govern the use of the depository. Fourth, involve the court early in the process—whether all parties are involved or you are going to go solo. Explain the benefits of your proposed production vehicle. Obtain a Fed. R. Evid. 502(d) order to protect against any claims of waiver resulting from inadvertent productions and to eliminate the need for any hearings to adjudicate ‘‘reasonable’’ protections that may otherwise be necessary if Rule 502(b) were the governing provision. Also obtain a strict confidentiality and access order that governs all aspects of the use of the depository site as well as information available on and derived from the site. Fifth, gather your data, ensure that a copy of the original format (as collected) is preserved, and then load your data into the platform and let the reviews and productions begin. E-Discovery Physics. One statement of Newton’s First Law of Motion is that a body at rest tends to stay at rest.[6] So too in discovery it seems to be that many lawyers continue to fight discovery battles and resist change simply because that is the way it has always been done. Yet, for those clients and counsel who are open to considering the use of technology to shift the paradigm to reduce disputes and costs associated with production, there may well be enough force of persuasion to usher in the use of internet-based productions. This does not mean that all parties or cases will or should shift to a web-based production world. It just means that parties and counsel need to be educated about the possibility so that they can make educated judgments regarding the best approach in any given case.
Jonathan Redgrave is a partner in the Washington, D.C., office of Nixon Peabody and also Chair Emeritus of The Sedona Conference Working Group on Electronic Document Retention and Production. The views expressed in this article are his and not necessarily those of his firm or its clients. Victoria Redgrave is vice president and general counsel at Technology Concepts & Design, Inc. (TCDI) in its Reston, Virginia offices. She was previously in-house counsel at The Dow Chemical Company and Cummins, Inc., and was also outside counsel at an AmLaw 100 firm. The views expressed in this article are hers and not necessarily those of her company or its clients. The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct. |
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