For almost every eDiscovery document review the end result is a document production, and in most cases the delivery of those productions is based on some deadline. Because they often come at the end of a review and before a looming deadline, productions are all too frequently rushed, frantic, stress- inducing tasks for case teams and vendors alike. Under these conditions mistakes routinely happen, creating further delays or worse. But with a little planning and understanding of the process involved in generating a production you can avoid the last-minute panic and deliver an accurate, on-time production set.
(Read: eDiscovery Update: Cases of All Sizes Must Adhere to eDiscovery Best Practices)
Here are five steps to help ensure you get the best result from the production process.
1. Planning is the most important factor in determining success.
Having an eDiscovery plan at the outset of a case will help to ensure that you stay on time and on budget, and it could help determine the outcome of the case. Engage your vendor to help coordinate your eDiscovery plan; they have seen most every scenario and can share their expertise to design and execute the plan to everyone’s satisfaction. An eDiscovery plan should include at the very least a calendar for key dates and milestones, a collection schedule, processing/imaging specs, a review plan for first pass and quality control reviews, and a production plan.
2. Production format should be decided before data is processed, not after the fact.
Processing data with the production format in mind ensures that the all the necessary components for a production will be ready at the time of production. You don’t want to have to go back to the processing engine for new metadata fields, or apply a different deduplication setting days before a production is due. Processing data without the final objective in mind leaves the door open for unplanned costs and delays.
I recall a specific case where the producing party instructed the vendor to deduplicate processed data across all custodians. Two days before the final production was due, the opposition pointed out that the discovery order called for deduplication within custodian. The result of this oversight was a need to re-duplicate hundreds of thousands of records and produce those records in less than 36 hours. Needless to say the volume was too great and the deadline was missed. That result could have been avoided had the data been processed with the production in mind.
(Read: A Quick Guide to eDiscovery Production Formatting Options)
3. Any changes to a production likely means that your vendor will have to re-start that production.
Due to all of the factors/steps involved in finalizing productions (volume of documents, redactions, QC checks, coding discrepancy checks, various levels of confidentiality, etc.), every change to a completed production starts the process all over again.
4. Create a simple document coding palette and clearly communicate your coding conflicts to your database administrator.
I have seen cases in which a simple privileged conflict required running searches across five fields for more than ten values. There was a field for general privilege, a field for attorney client privilege, a field for attorney work product, a field for personal privacy information, and a field for HIPAA information. For a document to be considered privileged it had to be tagged as both general privilege and in at least one of the other privileged fields. Running these conflict checks took one to two hours per production and significantly added to the cost and time required for each production.
Subjective coding layouts contain key determination information for which documents will be produced, which will appear on a privileged log, and which should be held back. These fields and the values in those fields should be as clear and easy to understand as possible. The simpler it is to use the easier it will be to run coding conflicts and get the production cleared for processing.
5. Don’t commit to a deadline before discussing with your review team and your litigation support vendor.
Productions are a deadline driven product. Requests come in with short lead-times and vendors are frequently managing several requests at one time. To deliver a production on Friday morning, most vendors will have to ship it overnight on Thursday evening, meaning that the production you submit on Tuesday has about 48 hours to be completed. Assuming that everything goes as planned, most productions can be performed during a 48 hour window, but without confirmation you risk the chance that the deadline will be missed, or worse yet, that the deliverable will be incorrect.
Because so much of your case’s success rides on the document production and because productions are often delivered under the strictest of deadlines, they can be stressful and worrisome. Still, much of that stress can be relieved by following the simple guidelines laid out above. It is important to engage your vendor and come up with a plan for your review and production. This plan will allow you to develop a simple and easy to follow production cycle, affording you time to focus on case arguments rather than managing an unneeded production crisis.
Talk to an expert consultant today to create an easy to follow eDiscovery plan that will help to ensure that you stay on time and on budget.
