ch 12 request for documents

Additional Privileges

- As noted in Chapter 8, the common interest privilege protects any communication among attorneys for different clients when those clients share a common interest. Other privileges that can be used to protect evidence include the medical privilege and the confessor-penitent privilege. The medical privilege was established to shield any sensitive information that passes between a patient and a medical practitioner. In like manner, the confessor-penitent privilege was formulated to guard the confidences disclosed by a penitent to a member of the clergy.

Organizing and Indexing the Documents After Production

- As the paralegal, you will have several duties following production of your client's documents and review of the opposition's documents. Because thousands (and with ESI possibly hundreds of thousands) of documents are often involved in the litigation, control problems will be very serious. You can aid in establishing tight control over these documents by organizing and indexing them.

Subpoenas Duces Tecum for a Nonparty to Produce Documents

- A nonparty can be subpoenaed to produce documents at a deposition, according to Rule 45 of the Federal Rules of Civil Procedure. The deposition notice served on the nonparty will contain a specific listing of the books, paper documents, electronically stored information, or tangible things to be produced. That list is repeated in the deposition subpoena served on a nonparty. As noted earlier in the book, Rule 45 has been amended to accommodate problems associated with ESI. However, this method of document and ESI production is still handicapped by the same shortcomings that plague the request for documents at the deposition of a party. If the attorney is viewing the paper documents or the ESI for the first time, she will waste valuable time at the deposition. In addition, the later review of the paper documents and the ESI may suggest the need to schedule another deposition. Again, the court may or may not be amenable to a second deposition.

Indexing the Documents after Production

- An index of the documents produced by all parties is critical to controlling the files throughout the lawsuit. This index can be limited to the document number, date, author, recipient, document type, and a brief summary of its content. If you place the document in word processing or on the firm's computer, a particular document can be located quickly by any of the identifying labels. The index is your final control measure. However, this does not mean that you should minimize its importance. It may be a difficult job at the outset of the lawsuit, but it is much less difficult than searching for a document by trial and error later in the case

Organizing the Document Production

- Organization is a key factor in conducting a successful document production. One effective way to organize is to gather all of the required documents in one central location. Exhibit 12-4 is a checklist you might follow to locate and gather in one location all the documents from your client's executive offices and branches. The checklist, however, is intended as a guide only. Planning strategy in a lawsuit is not like running an experiment in physics. No absolute principles of nature guide the operation of a lawsuit. The best that you can do is to develop a rough outline of those steps that have worked in the past and, therefore, might be helpful in the present for determining what will probably happen in the future. Unfortunately, no one can predict exactly what will happen in every lawsuit every time. Sometimes you just have to adjust to changing circumstances.

Final Responsibility in Drafting the Request

- Responsibility for the final review and signature of the request for documents rests with the attorney. Once the request has been signed, you will have to arrange for service on the other party or parties. Under the Federal Rules of Civil Procedure, a request for production of documents need not be filed with the court. However, some states and some local courts do have this filing requirement, so you should check your state and local rules on this matter. After the other party has been served with the request, place a reminder of the response due date in the firm's tickler or calendar system. If a timely response is not received, check with your supervising attorney to determine whether an extension of time has been granted. If an extension has not been granted, then it may be necessary to file a motion to compel.

Recent Developments Concerning Mutual Disclosure of Documents

- Rule 26 (a) (1) (A) (ii) of the Federal Rules of Civil Procedure requires the mutual disclosure of the following information within 14 days (under Rule 26 (a) (1) (C)) after the initial conference between the parties: "a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment."

Responding to a Request for Documents

- A document production is only as successful as the planning that precedes it. The first action you should take, once you have been served with a document request, is to determine whether the production date is realistic. Other important elements in the successful production process are categorizing the documents, involving the client, and organizing the documents.

Timing of the Request

- A formal request for document production should not be served before the parties have conferred as required under Rule 26. Given that limitation, your supervising attorney will still initiate a request for production of documents as soon as possible. Often this will mean drafting a request for production prior to scheduling the first deposition. This early production request will enable the use of documents and ESI produced in preparing deposition questions. On the other hand, in some cases it may be better to delay filing a request for documents until after depositions and interrogatories have been conducted. This decision is especially valid if the interrogatories may help determine how to draft an effective document request. As we've seen, in the case of ESI, interrogatories can help determine such things as the nature of the party's computer system, the type of data available, and the identities of all the people who are responsible for managing, maintaining, or servicing the party's computer system. After your supervising attorney has access to these facts, she will have a better idea about the nature of any document request or on-site visit that ought to be conducted to recover ESI.

Reviewing, Labeling, and Filing Documents before Removal

- A paralegal and an attorney should review all documents before they (the documents, not the paralegal and the attorney) are removed from the client's office. Sometimes one or more of the client's original files will contain documents that you must produce, other documents that you need not produce, and still others that are protected by privilege. The documents that you will have to produce are called responsive documents; the documents that you do not have to produce are called nonresponsive documents. The protected documents are called privileged documents - To separate these documents, set up three duplicate files. Place copies of the documents to be produced in one of the folders and give it the same title as the client's original file. Place the nonresponsive documents in the second file and label it "nonresponsive" or "non-produce." The term non-produce is simply a synonym for nonresponsive. Place the privileged documents in the third file and label it "privileged." All privileged files should be removed from the area where the responsive documents are kept. This simple precaution will prevent them from being inadvertently sent to the other party. For ESI, create e-files that correspond to the categories listed above - Sometimes a single document will contain information that you must produce and information that you need not produce. The same document also may include information that is protected by privilege. In such a case, cover the irrelevant or the protected information before making a photocopy. Place the notation "deletion" on the covered portion. This deletion process is referred to as redaction. Make two copies of the redacted page. Place one of the redacted copies in the file that is marked as the client's original file. Place the other redacted copy in the nonresponsive file or the privileged file, whichever is appropriate.

Protection of Documents

- A party served with a request for documents has 30 days to respond to that request. The response must indicate either that the party will comply or that the party objects to the request or to part of the request. If an objection is made as to part of a request, inspection of the remaining parts must be permitted. Grounds for such objections include arguing that complying with the request will violate either the attorney-client privilege, the attorney work product privilege, or the common interest privilege. Other objections include that the request is overbroad, duplicative, or irrelevant. In addition, under the new amendments to Rule 34, an objection can be made to the ESI format demanded by the ESI requester. If none of these objections is appropriate, the documents and the ESI may still be kept private by using a confidentiality agreement or a protective order. The new rules also include the quick peek and clawback provisions for protecting ESI.

Overbroad and Duplicative Requests

- A party who is responding to a request for documents may also object on the grounds that the request is overbroad. Such an objection would argue that the request is so wide ranging and inclusive that it asks for more evidence than could ever be useful to the other party in the lawsuit. In the Keltex case, for example, if Keltex requested all of the corporate minute books of Netcore, that firm's attorney would be justified in objecting on the ground that the request is overbroad. - Usually, such an objection is accompanied by an alternative suggestion. Thus, in response to the Keltex request, Netcore would refuse to produce all of the corporate minute books, but it would promise to produce any corporate minute books that expressly refer to the contract between Keltex and Netcore which would be relevant to the lawsuit. Another objection to a request for production of documents is that the request is duplicative. This objection argues that the other party has already asked for that information in another part of the request.

The Request for Documents

- A request for documents is a request that a party or other individual involved in a lawsuit provide ESI, paper documents, or other physical evidence to the party making the request. Prior to the mutual disclosure amendments to Rule 26 of the Federal Rules of Civil Procedure, the majority of documents produced in a lawsuit were delivered through this formal request for documents. Because of this significant change in production methods, we will examine the process of document production through mutual disclosure.

Involving the Client in Document Production

- Although you have requested categories of the documents that you believe are responsive to the request, you must remember that only the client, and perhaps the client's IT assistant, knows what types and how many documents actually exist. Also remember that only the client can make the documents available to the law firm for production. Therefore, the client must be involved in the production of documents as early as possible. In fact, because the rules require early mutual disclosure, because ESI plays a huge role in most lawsuits today, and because a litigation hold must be placed on ESI immediately upon the discovery of a trigger event, you must involve the client, the client's staff, and the client's IT support group from the outset. - As noted earlier, the client must establish a litigation hold as soon as your supervising attorney detects even the slightest hint that a trigger event has occurred. Your attorney should talk to every member of the client's firm who has contact with or control over ESI so that they understand the crucial importance of maintaining that litigation hold. Once your firm receives a copy of a document request, you must send a copy to the client immediately. In addition, make sure that you point out the date by which the production is to be made so that the client is aware that the process should not be delayed. Next, schedule a meeting with the client as soon as possible to plan the document production process.

Approaches to Document Production

- An attorney's approach to document production is based on two factors. First, when responding to a document request, the attorney must decide on the organizational approach that will best serve her purposes. Second, the attorney will have to determine the number of documents to be produced.

Organizing and Formatting Documents

- Based on organization, a party producing evidence has a choice of three strategies. The documents may be produced (1) as they are kept in the usual course of business, (2) according to categories specified in the document request, or (3) as ESI. - Producing the documents as they are kept in the usual course of business requires less time and effort by the responding party. If an enormous amount of information is requested by the other party, this approach would be appropriate. However, do not make the mistake of thinking that the phrase "in the usual course of business" allows the responding party to shuffle the documents to hide pertinent information. - Producing the documents according to the categories in the request requires additional time and effort for the responding party. Still, such an organizational effort can be managed if relatively few documents are requested. Naturally, the party initiating the request prefers this approach because it reduces the time and effort required to organize and analyze the documents. Moreover, the party producing the documents also may prefer this technique because it forces a review of all the requested documents, lessening the chance of inadvertently revealing privileged documents. - Producing the documents as ESI requires the ESI requester to specify the format used for the recovery and transmission of the data. Thus, if the ESI requester specifies a format, the ESI retriever must follow that format request. However, Federal Rule 34 does permit the ESI retriever to object to the format suggested by the ESI requester, provided that the retriever explains the objection in writing. If the ESI requester has not specified the ESI format to be used, the ESI retriever is permitted to transmit the ESI in the format in which it is regularly kept or in a reasonably useful format.

The Number of Documents

- Based on the number of documents, the party responding to the request has three options available in producing the documents. These three options are (1) the warehouse approach, (2) the comprehensive approach, and (3) the limited approach. - Each has its own particular advantages and disadvantages. In the warehouse approach, all documents, both relevant and irrelevant, are produced without any type of organization. The advantage for the producing party here is savings in the time and effort involved in organizing the documents. However, this approach does not relieve the attorneys and paralegals of the need to review the documents before releasing them. Also, by releasing all of the documents available to the party, some documents that appear irrelevant early in the litigation may later be discovered to be highly relevant. These apparently innocent documents could disclose information to which the requesting party is not entitled. Such a disclosure might assist the opposing party in preparing the case for trial. - In a comprehensive approach, all documents even remotely relevant are produced, even those not directly requested. This strategy is advantageous because it can save time and effort later. The underlying premise is that all of these documents will be requested sooner or later anyway. By releasing them now, the paralegal eliminates the need to repeat the process of combing through the files a second and possibly even a third time. Nevertheless, the comprehensive approach remains a risky strategy because the responding party may inadvertently release documents that the other party would never have requested and should never have seen because the distribution of those documents violates a privilege involving evidence that should have remained protected. A limited production is one in which only the documents requested are produced. The advantage here is the protection of relevant documents that the other party has yet to request. An attorney might elect this approach if the request is very limited in scope or if it is poorly drafted. However, the disadvantage is that later document searches may be necessary as subsequent requests are received.

Instructions

- Because the instruction section of the request is also crucial, its heading should be placed in the center of the page in boldfaced lettering. Some law firms combine the definition and instruction sections of the request, so make sure to check on your firm's procedure. The instruction section specifies the time period in which the documents should be produced. For example, in the Keltex case, the renovation deadline was September 9, 2015; the request should cover at least the period from September 9, 2014, to the date of the upcoming production of documents. This entire period should be included because the negotiations, correspondence, memos, and interim reports that preceded the final contract may be critical in litigating your client's case. - The instructions also may indicate whether the requesting party wants to see originals or copies of the documents. It is customary to ask for the identity of anyone who has any of the requested documents not in the custody, possession, or control of the party served with the request. The instructions should remind the responding party of the duty to supplement the production of documents with any documents found or created after the first production takes place. This can usually be done by labeling the request as a "continuing request." It is customary to remind the responding party to correct any errors uncovered after the original production of documents. The instructions will indicate the format that should be used by the ESI retriever for transmitting all requested ESI.

Form and Content of the Request

- Before drafting the request, you might locate sample requests for documents in form books, in the firm's word-processing form file or, if necessary, online. Of course, you will have to modify any form or sample request to fit the particular facts and issues in the case. Still, forms and samples can often be used for the basic areas of the request, such as the introductory paragraph and the definitions of terms. You also need to be familiar with the pertinent court rules involving discovery. Each court may have individual rules relating to the number of requests allowed, the time allowed for responding to requests, the manner of objecting to requests, and the availability of a motion to compel the production of the requested documents.

Organizing the Documents after Production

- Before the mass of information in these documents can be used properly, the documents must be organized. Organizational plans vary from case to case. Some cases are hinged on chronological events. Documents in such cases are ordered by dates. Other cases may be broken down into several subject categories, and the documents would be organized by those subjects. In other cases you will be asked to organize the documents in anticipation of the upcoming depositions. In such a case, you will need to pull together all documents related to the testimony of each deponent to be called. The method of organization is less important than the fact that the documents are organized in a way that will help you instantly locate a document when asked to do so. - If the case is to be managed manually, without the aid of a computer (a rare but not nonexistent technique today), several copies of each document should be made. One set can be placed in chronological order, a second set in subject order, and a third set in deponent order. Keep the copies separate from the original numbered set and limit access to that original set. A missing original that is incorrectly numbered may disappear forever. The absence of that crucial document could have a severe impact on the case. Remember, control and organization are the keys to effective document management in any successful litigation.

Requesting the Production of Documents

- Before you begin drafting a request, you should develop a working knowledge of the case. You can gain this understanding of the case by reviewing the pleadings binder, the correspondence file, the attorney's notes, and the research notebook. As you review these files, take notes of the possible types of documents or particular documents that are relevant to the case. In the Keltex case, for example, as a paralegal for the firm representing the Keltex Center for Advanced Technology, you might want to see Netcore's corporate minute books; any policy manuals followed by the firm's officers in negotiating contracts; all correspondence (paper, e-mail, and otherwise) between Keltex and all subcontractors; and all internal memos, e-mails, and reports involving the construction contract. Once you have done this initial research, you will be ready to draft the request. However, your responsibilities will not end with drafting the request. You may also need to draft a motion to compel the other party to produce the paper documents and the ESI, and you may be responsible for reviewing the documents once they are received.

Controlling the Documents

- Control is also an important factor in effective document production. You must be able to determine the location of any document among the thousands of documents that you will compile. For example, when your attorney asks for a one-page opinion that is part of a closing binder, you will be expected to locate the pertinent document quickly. Or if the client's chief financial officer needs to review the minutes of the board meeting at which the directors discussed the Netcore and Keltex contracts before the next board meeting, you must know exactly where that file is and make certain that the CFO has it on time for that meeting. Exhibit 12-4 includes steps that will help in the organization of the document production process. For ESI, your supervising attorney should already have taken control of all copies of all pertinent ESI files. If this did not happen as a part of the original litigation hold, it should be established now

Inadvertent Production of Documents

- Despite the most stringent safeguards, privileged documents are sometimes sent to the other party inadvertently. In complex litigation, parties often provide for this eventuality by an agreement to notify the other party of the accidental production of documents and request a return of all copies of the documents. Unfortunately, the parties to a lawsuit are not always cooperative. If a party in possession of inadvertently released documents refuses to return those documents, your supervising attorney will have to file a motion asking the court to compel the return of those documents. If, however, the documents were released as a result of your supervising attorney's negligence, the court may not be sympathetic and might very well refuse to grant your attorney's motion. Also recall that Rule 502 of the Federal Rules of Evidence will limit the damage that results from this inadvertent disclosure of privileged material.

Alternative Methods of Requesting Documents

- In federal court, as well as in many state courts, in addition to mutual disclosure and a Rule 34 request for production, the parties to a lawsuit can request documents and ESI at the deposition of a party, or they can use a subpoena duces tecum to compel a nonparty to produce documents and ESI at the time of a deposition. The use of interrogatories may also result in the production of documents and ESI.

Request for Documents to Parties

- Despite these other techniques, the request for documents still remains the most efficient and effective way to obtain documents. A request for production should not be served until the parties have initially conferred as required under Rule 26. Once served, under Federal Rule 26 (a) (1) (D), the answering party has 30 days in which to respond. The court, however, may shorten or lengthen this time period. The opposing attorney's response to the request must indicate that her client will comply with the request or should indicate the grounds for any objection to the request. - According to Federal Rule 34 (b) (1) (A) the ESI requester must specify with "reasonable particularity" the general categories of documents or the particular documents that the other party wishes to inspect. The request should also specify a reasonable time, place, and manner of production. Naturally, the attorneys may alter these arrangements to make the production more convenient to all those involved in the process. The manner of production is also determined by negotiation and agreement between the attorneys. Sometimes the original documents will be required, whereas at other times copies will be sufficient. The Federal Rules of Civil Procedure do not limit the number of requests for production. Several requests may be needed in a complicated lawsuit involving many parties located across the country. - Recent amendments to Rule 34 also permit a party requesting ESI to specify the format in which it will be transmitted. As might be expected, the terms documents and ESI have a wide variety of meanings. Rule 34 (a) (1) (A) explicitly defines both document and ESI as "any designated documents or electronically stored information—including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations—stored in any medium from which information can be obtained, either directly or, if necessary, after translation by the responding party into a reasonably usable form." - The scope of the rule extends not only to documents and ESI in the actual custody of the party, but also to those documents and ESI under the "control" or in the custody of the party. This means that the ESI requester has the right to obtain documents and ESI that are actually in the possession of a third individual, such as the party's tax consultant or financial adviser. The rule also allows the ESI requester to inspect and copy those documents and ESI. Of course, determining who has actual control of the ESI and figuring out whether the person in possession of the material or the person who passed that material along actually owns the ESI or the documents is problematic at best.

Trigger Events and Adverse Inferences

- Determining when to issue a litigation hold is not an easy task. Nevertheless, the courts have developed a few rules that make the task a bit easier. The most fundamental rule says that the duty to issue a litigation hold emerges as soon as the party knows, or should have known, that litigation is pending. Any set of circumstances that sparks this responsibility is a trigger event, although depending on local custom, it may also be called an opening episode, an instigating event, or a precipitating incident. Some triggering events are obvious, while others are harder to spot. One clear-cut triggering event is the letter, memo, e-mail, text, fax, voice mail, IM, or tweet that states, "We are going to sue you." Other triggering events might include a notification of a missed payment, an inquiry into a corporation's hiring policies, or even the scheduling of an appointment for "preliminary discussions on a matter of mutual interest." - It is even possible for a firm to stumble into a self-induced trigger event. A self-induced trigger event is an incident or a discussion about litigation that occurs completely within the confines of an institution but that produces the need to issue a preservation order. A self-induced or self-initiated trigger event can occur, for instance, when executives speculate about the possibility of their firm being sued because of an incident with a customer, client, supplier, or employee. Despite these warning signs, the courts still use a reasonableness standard when determining whether a legitimate triggering event has occurred. Nevertheless, the failure to preserve evidence can produce severe consequences up to and including the possibility of an adverse inference ruling. An adverse inference is a ruling that declares that the jury may interpret any missing evidence against the interests of the party that failed to produce the evidence.

Title of the Document and Introductory Paragraph

- Document production often involves many parties and several requests. Your draft request for the production of documents should identify the party making the request, the party receiving the request, and the number of the request: THE KELTEX CENTER FOR ADVANCED TECHNOLOGY'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS TO DEFENDANT NETCORE, INC. - Using this type of detailed title avoids confusion and eliminates the need to read the entire request to determine the parties involved. The introductory paragraph of your request should list the applicable federal or state authority and the time and place of the production.

Request for Documents at the Deposition of a Party

- Documents may be obtained from a party by serving a request for that party to bring those documents to her deposition. Rule 30 (b) (2) of the Federal Rules of Civil Procedure allows this alternative. The specific documents or the categories of documents to be produced must be included in the deposition notice of attachment - A request for documents at the deposition of a party is not always the most efficient way to handle document discovery. If an attorney must wait to see the requested documents until the deposition, she may have to spend precious time reviewing the documents as the deposition is in progress. Moreover, subsequent examination of the documents often reveals information about which the deponent should have been questioned. This may necessitate scheduling another deposition, which may or may not be allowed by the court. - If the request includes ESI, and today there are few reasons that it would not, the situation becomes more complicated because that ESI may have to be evaluated by IT experts using a computer system that may not be available at the deposition or by using a format that cannot be read by the computer that is at the deposition.

Documents Requested

- Rule 34 of the Federal Rules of Civil Procedure states that a request for documents must specify with "reasonable particularity" the general categories of documents or the individual documents that the requesting party wishes to inspect. This requirement is accomplished in the section headed "Documents Requested." Generally, this section consists of a list of numbered paragraphs, each one specifying a document or a category of documents. Because the preceding paragraphs have explained the definitions and instructions, the job of listing the documents in this section has been considerably simplified. Exhibit 12-3 is an example of a request for production of documents that might be filed in the Keltex case.

Mutual Disclosures and ESI

- Federal Rule 26 (a) (1) (A) (ii) states that all electronically stored information (ESI) must be disclosed along with all paper documents and other tangible things as early as possible in the discovery process. This requirement encompasses all relevant items of ESI including those found in any electronic device, not just those that are commonly thought of as computers. Here are a few of these devices, some of which may have escaped your supervising attorney's notice because they include devices that many people do not think of when they hear the word computer: antitheft systems and databases, audio networks, audio systems, digital cameras, documented image technology, embedded chips, e-mail software, e-mail systems, event data recorders (in vehicles), external hard drives, fax machines, flash drives, global positioning systems, handheld wireless devices, hardware, iPods, iPads, landline phones, laptops, medical devices and records, memory sticks and flash cards, mobile phones, notebooks, pagers, personal computers, PDAs, printers, radio frequency identification tags or chips (RFIDs), security cameras and other security and surveillance devices, servers, servers at data centers (cloud storage centers), software, smartphones, spyware, tablets, toll road cards, travel drives, videodiscs, videotapes, and Web-based bulletin boards. To be on the safe side, all of these devices should be considered when examining the nature of ESI in your client's possession, custody, and control. - Moreover, today it has become acceptable for employees to use their own tablets, smartphones, and laptops on the job. Some businesses distribute employer-owned devices that include separate areas for the employee's personal use, while others allow workers to bring their own devices into the workplace that are programmed by the firm's IT department with secure work areas for e-mail, employee forms, and other work-related files. Whichever tactic is used, the methodical attorney will assume that her opponent's clients are engaged in this practice and will include the ESI stored on business-owned and personally owned e-devices in a document request. Moreover, she will also make sure that her clients realize that personal electronic devices may be included in any document request filed by the other party.

Format Objections to Document Requests

- Federal Rule 34 also permits the ESI requester to ask that the ESI retriever transmit the requested ESI in a particular format. The ESI retriever is then permitted, under the new amendments, to object to the format if the objection is explained and placed in writing. Such explanations might include that the format requested is not the format used by the ESI retriever in the day-to-day operation of the firm and, as such, is incompatible with its computer system and that translating the ESI into a compatible format would be too time consuming, too costly, or too difficult.

The Volume of ESI

- In most, perhaps all, cases, the amount of ESI available within a company, institution, or organization's computer system far exceeds the paper evidence available. This is often due to the fact that many documents that e-workers believe they have deleted still exist somewhere in the system either as inactive or extant data. For example, in the Keltex case, Alyendra Raveau, the chief engineer at Netcore, may believe that she has deleted all e-mail on her desktop PC, on her home computer, on her tablet, on her smartphone, and on her laptop involving the Keltex contract. However, if she did not tell the recipients of those e-mails to delete their versions or if she did not inform those who received copies of those e-mail documents to do the same, each of those e-mails will still be discoverable. In addition, even if all of the copies were deleted, extant copies may exist that a sufficiently clever IT expert will be able to retrieve. - Because of this problem, the extent to which ESI is concealed within a computer network is often a mystery even to the most well-informed member of an organization. Consequently, the targets of an early document production request should not be the type of data as much as the computers themselves (PCs, laptops, home computers, tablets, smartphones, and other mobile phones) of key individuals on the opposing side who might be privy to important evidentiary ESI. Still, such requests also should seek to examine e-mail files, flash drives, scanners, printers, CDs, network files, voice-mail files, computer tapes, fax machine records, backup data, servers, and extant data.

Preliminary Decisions Regarding Requests for Documents

- In the Keltex case, your clients, Keltex and Aspect have elected to sue the firm of Netcore, Inc., which failed to finish updating its state-of-the-art computer system by the specified deadline. At this time, your supervising attorney will have to make some preliminary decisions regarding any requests for documents to be served on the defendant. Two crucial considerations are the timing of the request and the potential cost of production of the documents.

Interrogatories and ESI

- Interrogatories are best used at an early stage in the discovery process to help your supervising attorney determine what documents are available for a later document production request. ESI is especially susceptible to this strategy because computer records can sometimes be difficult to identify, retrieve, and interpret. Thus, the interrogatories must include questions that focus on the nature of the party's computer system; the configuration of any network systems that are involved in the party's operation; the number and location of all workstations and all network servers; information on upgrades, equipment changes, and reformatting; details on any policies on the elimination of ESI; policies that mandate the preservation of certain records or any backup processes in use; information on the party's e-mail system; and a list of all individuals who are responsible for maintaining, upgrading, repairing, or servicing the party's computer system, including in-house and independent outside information technology (IT) experts. Other interrogatories should involve references to the same types of electronic systems included in the original Rule 26 disclosure list. When the case involves a business or an organization, the interrogatories should also determine whether the employer permits employees to use their own electronic devices on the job or whether the employer distributes dual purpose electronic devices that have both professional and personal functions. Once your supervising attorney has this information in hand, she will have a clearer idea of how to frame document requests and on-site visits to retrieve ESI.

Obtaining an Inspection

- Normally, the demand for inspection is made informally by letter. Sometimes the demand may be transmitted by e-mail or fax. The letter, e-mail, or fax will also designate a date and place of inspection. If the date and time specified in the letter, e-mail, or fax are inconvenient for the other party, another time and place can be set. In some instances, the party who has custody or possession of the property in question is reluctant to allow the other parties access to the property. Rule 34 of the Federal Rules of Civil Procedure sets out the procedure by which a party may demand that the party with custody of the property relevant to the case shall produce the property for inspection. The court will usually grant the inspection if it determines that the inspection is calculated to lead to the discovery of evidence that will be admissible at trial. The procedure for gaining access to property in the possession of another party is simple. A demand for inspection must be prepared and served upon all parties in the litigation, even if it is directed only to the party that has custody of the property at issue. The property must be identified with reasonable particularity, and the demand must not be overly broad or vague. A demand for inspection may be made only upon the parties to the litigation.

Numbering the Documents

- Numbering and control are synonymous. Without identifying numbers, organizing and controlling document production is almost impossible. A number assigned to a document during the production process should remain with the document throughout the lawsuit. The traditional technique for numbering the paper documents is the Bates numbering system. The Bates numbering system involves the numbering of documents in a lawsuit using a stamping machine. Recently, computer-generated numbers on peel-off labels have replaced the Bates numbering system. The new system is different, but the result is the same. Documents can be identified quickly and easily. Bates software can be used to label electronic documents. Alpha prefixes can be used to identify the source of a document. For instance, the plaintiff's documents might begin with "A," and the defendant's begin with "B." However, you should not act too quickly in numbering the documents. All privileged documents must be removed from production before numbering to avoid suspicious gaps in the numbering system. Exhibit 12-5 represents a sample document production log to assist you in organizing the documents for production. - You should also make out a privilege log, indicating all documents that are shielded by the attorney-client privilege, the work product privilege, the common interest privilege, the medical privilege, or any other privilege that might be available to your client. Exhibit 12-6 will help you compile such a log.

Reviewing the Documents of the Opposing Party

- Once the documents requested have been received in your office, you may be asked to review those documents, either alone or with an attorney. Naturally, knowledge of the facts, issues, and parties in the case is essential to a successful document review. However, you must also have an understanding of what your supervising attorney is looking for as you inspect and review the documents. Therefore, you should ask your attorney for guidance in reviewing the documents. For example, you ought to know which of the files must be read in-depth and which can be scanned. You might want to know if your supervising attorney is interested in a particular category of documents or in the documents produced by a particular individual. - Because reviewing a large volume of documents is a time-consuming and tedious task, you will want to try various techniques for expediting the job. One technique is to dictate file labels and a brief summary of the contents of each file. This strategy will help you review more documents over a shorter period of time. Another technique is to keep a record of the files that you have reviewed. This tactic will help you recall the precise location of documents that you have seen and consider crucial to the case. If you are dealing with original documents, your supervising attorney may want to have copies made of the more important documents. Your attorney will set the parameters for the documents that she will want you to copy. However, if you have any doubt about the value of a document to your case, designate the document for copying.

Requirements Imposed by the Sarbanes-Oxley Act

- One of the consequences that resulted from a high-profile case involving corporate corruption in recent years was the passage by Congress of the Sarbanes-Oxley Act. Sarbanes-Oxley created a series of criminal sanctions that can be levied against companies that deliberately distort their records in order to disguise their actual net worth. One of the major provisions in the act is directed primarily at preserving evidence for criminal investigations brought by the government. The main objective of these provisions is to prevent corporations and accounting firms from deliberately destroying evidence that can be used in a criminal prosecution. The act has, understandably, created numerous problems for modern corporations which tend to store most of their records in computer files, many of which are routinely erased because of the cost involved in storing such data in systems that have a limited carrying capacity. Despite the differences that exist between criminal and civil law, the development of a criminal law standard against destroying ESI, will likely be related to the traditional rules of discovery in civil cases in federal court which impose an affirmative duty to preserve evidence for the litigation process

Interrogatories and the Production of Documents

- The use of a set of interrogatories sometimes results in the production of documents. Rule 33 (d) of the Federal Rules of Civil Procedure allows a party answering a set of interrogatories to produce business records, including ESI, if the examination of those records will provide the answer to an interrogatory.

Making Document Production a Joint Effort with the Client

- Sometimes clients suggest that they conduct the document search without the aid of someone from the law firm. Several disadvantages argue against this approach. First, clients are often unaware of the attorney-client privilege, the work product privilege, and the common interest privilege and may, therefore, not recognize protected documents. Second, clients may fail to recognize the documents they actually must produce. Third, clients often do not comprehend the amount of time and effort involved in a document production. Finally, the client probably does not realize that sanctions can result if all the documents requested are not produced. Pointing out these disadvantages to your client should help convince the client to make document production a joint effort with the law firm. Your client may suggest hiring an independent contractor to conduct the document search. Although reputable firms can conduct such a search, your firm should never relinquish control over the process. The law firm should also conduct the document search without the help of the client, especially when ESI is involved. Your supervising attorney may, therefore, assign you the task of creating a liaison point with the client's IT department, with the administrative assistants, with the independent data center, if one is involved, and with any interns and temps who work directly with the client's computer system and with the client's ESI.

Scanning the Documents

- Sometimes you should scan all paper documents so that those documents can be preserved electronically. The scanning process allows you to store the material without talking up extra space in the office or file room. Often when most of the evidentiary material is already in a computerized format, scanning the remaining paper documents keeps everything in the same electronic file. You will probably have a choice as to what format to use in the scanning process. When possible, use a format that will make the newly scanned files compatible with the ESI files

The Attorney-Client Privilege

- The attorney-client privilege prevents the forced disclosure of communication between an attorney and a client. Like the other forms of discovery, a request for documents is limited by the attorney-client privilege. This extends to communications to or from both inside and outside counsel. At an early stage in the discovery process, the paralegal should draw up a list of all attorneys who represented the client in matters relevant to the lawsuit. The list will be used to identify documents, including ESI that should be withheld from the other party on the basis of the attorney-client privilege. Recall that the attorney-client privilege is waived if a document is disclosed to a third party. Care should be taken to limit access to these protected documents.

Selecting a Client's Representative for Document Production

- The client should designate a representative to coordinate the document production with the legal team. The representative should be a member of the client's in-house legal department, if possible. Whatever the case, the person chosen should know about the client's business during the entire period of time covered by the document request. Because the client's representative must devote a significant amount of time to the document production project, clients often appoint junior executives who are new to the corporation. Such a move can be a mistake, not only because the junior executive will not be familiar with the entire case, but also because the other employees may refuse to cooperate with the "outsider." If you find yourself in this uncomfortable situation, seek the help of the client's in-house legal department to find a replacement. The replacement should be someone who is more familiar with the case and who will command the respect needed in such a sensitive operation. Remember that your supervising attorney may also want to establish a litigation response team charged with the task of learning all there is to know about the client's computer system and the ESI recorded on that system.

Copying and Printing the Documents

- The decision of when to copy or print the documents must be made early in the document production process. With paper documents, it is generally not advisable to release original documents because the release of such documents can handicap the daily operation of the client's business. Also, when original paper documents are released, they may be lost. Finally, government regulations may prohibit the removal of some documents from the principal place of business. - Unfortunately, copying thousands of paper documents or printing reams of ESI documents can be expensive and time consuming. Therefore, the legal team should be aware of ways to reduce these expenses. For example, time and money can be saved by waiting until the opposing counsel designates the documents that are to be copied or printed. A disadvantage to this approach is that you may miss some documents that could be helpful to your client's case. Opposing counsel will have no interest in copying documents that support your client's position.

Definitions

- The definition section is a pivotal area of the request. The heading "definitions" should be placed in the center of the page in boldfaced lettering. This emphasis will direct the party answering the request to that section for clarification of any ambiguous terms. Having a separate section devoted solely to definitions avoids the need to include this information in the body of the request. Some of the terms that may be defined include agreement, computers, ESI, document, and report.

Managing the Litigation Hold Process

- The litigation hold process can now be made more efficient by installing a case management software package that empowers managers to directly initiate a legal hold in response to pending litigation, without having to install additional software to do the job. The new organizing software package can place not only e-mail documents on hold to await discovery and trial, but also other ESI documents currently being stored in other virtual folders - Some legal experts have also asserted in no uncertain terms that lawyers can no longer write a single litigation hold order and then assume that everyone will understand and comply. Rather the lawyer must step forward and ensure that any employees who may be inclined to go "rogue" are detected and stopped before they eliminate or disguise critical evidence, including ESI. - To make certain that clients comprehend the seriousness of these requirements, they should be reminded that the duty to preserve evidence is a responsibility that is owed to the court, not to the opposing parties - Moreover, a smart attorney will also expressly remind all opposing parties of their preservation duty in the lawsuit by sending those parties a spoliation memo. The spoliation memo can be sent as an e-mail message or as a paper document.

Inspection of Property

- The request for documents is directed only to documents. However, often a case involves tangible property, such as a piece of equipment or a parcel of real estate. Rule 34 of the Federal Rules of Civil Procedure provides a procedure through which the parties or their representatives can inspect property for the purposes of measuring, photographing, or testing.

Inadmissible and Irrelevant Evidence

- The scope of discovery is much broader than the scope of evidence that can be introduced at trial. Documents that would be inadmissible at trial can still be requested if those documents are reasonably calculated to lead to admissible evidence. However, documents that cannot reasonably be expected to lead to admissible evidence are not subject to discovery. Thus, the producing party may object to a request on those grounds. The producing party may also object on the ground that the documents sought are irrelevant to the lawsuit. Thus, in the Keltex case, Netcore might object to a request for its certificate of incorporation on the ground that the certificate is irrelevant to the lawsuit. In contrast, if the lawsuit involved allegations that Netcore was improperly incorporated, then a copy of the certificate of incorporation would be relevant, and no objection should be made.

Confidentiality Agreements and Protective Orders

- The secrecy of documents may be difficult to preserve during discovery. In the Keltex case, for example, at least two law firms (one for Keltex and one for Netcore) would be working on the case. Both law firms will probably have several attorneys and paralegals involved in the suit. In addition, legal secretaries, word-processing personnel, copy center personnel, interns, trainees, temps, and receptionists, among many others, will have access to the documents. How can the privacy and secrecy of documents be preserved in this atmosphere? One way to maintain privacy and secrecy is to have everyone who works on the case sign a confidentiality agreement. Another way is to seek a protective order from the court to limit the people who are allowed to see the document or the circumstances under which the contents of the document will be revealed.

The Work Product Privilege

- The work product privilege prevents the opposing party from obtaining, through discovery, letters, memos, documents, records, ESI, and other tangible items that have been produced in anticipation of litigation or that have been prepared for the trial itself. Because the work product privilege protects tangible evidence, it is especially applicable to a request for documents. Investigator's reports and materials prepared by expert consultants who will not testify at trial are examples of protected work product. Handwritten notes penned by the attorney during office visits or phone conversations with the client also are considered work product. Similarly, lists made by the client in response to a request by the attorney are protected. Whenever a law firm is involved in a multi-jurisdictional (MJD) case, the risk of accidentally losing the attorney-client privilege increases exponentially. The possibility arises because the law is practiced differently in foreign jurisdictions. These differences can involve (1) an attorney's status, (2) the nature of a waiver, and (3) the loyalty of an attorney. - Unlike the attorney-client privilege, the work product privilege is not an absolute privilege. Disclosure of some documents may be compelled if the party requesting production of the documents has a substantial need for the documents and cannot, without undue hardship, obtain the equivalent of the material by any other means. Calculating the time period when a document could be considered work product can be difficult. Is a document, including an e-mail message, a text message, an IM, a note on a smartphone, a voice mail, an entry on a tablet, or some other form of ESI, which was prepared by in-house counsel six months prior to the beginning of the lawsuit, protected by the work product privilege? What if the note is entered on the attorney's privately owned smartphone that is used by the attorney in a work setting. The answer is "yes," on both accounts as long as the message involves legal advice or discusses potential litigation. If, however, in-house counsel sends a memo or an e-mail on some general legal issue, that memo would probably not be protected by the privilege even if sent six weeks, six days, or six hours before the lawsuit is brought against the company. On the other hand, such a memo or e-mail would probably not hurt your client nor help your opposing counsel.

Legal Holds and the Duty to Preserve Evidence Including ESI

- Today, because businesses tend to delete ESI automatically, one of the attorney's first steps in a lawsuit must be to put a litigation hold on the routine handling of all of the client's ESI. Depending on local custom, a litigation hold might be called a hold order, a document hold, a data hold, a record hold, or a preservation order, among several others - Whatever it may be called, however, a litigation hold has one primary function. It tells the client's employees and associates to preserve all ESI, even ESI that appears unrelated to the lawsuit. Such hold orders are necessary because many firms delete large amounts of data automatically (read "without human intervention" here) as an economic way of freeing storage space on their systems. Because of this, a preservation order must be issued as early as possible and must be repeated often and in writing to make sure that all members of the client's firm take the message seriously - Moreover, as we shall see below, even this tactic may be insufficient in the modern world of e-litigation.

Responding to a Demand for Inspection

- Under Rule 34, the respondent has 30 days to respond to the demand for inspection. The respondent may agree to the inspection, limit or place conditions on the inspection, or serve formal objections to the requests. Normally, inspections of land, buildings, or equipment must be timed so as not to interfere with the other party's normal use. If a test to be used on the property might destroy that property, the test may be conducted by an expert agreeable to both parties. A video recording may be made of the test.

Federal Rules of Evidence—Rule 502

- Under Rule 502 of the Federal Rules of Evidence, the accidental disclosure of evidence protected by either the attorney-client privilege or the work product privilege will not be a general waiver, as long as the disclosure really was accidental, and resulted despite the fact that the holder of the privilege tried to protect the evidence. Moreover, according to Rule 502 (a), the intentional waiver of either the attorney-client privilege or the work product privilege affects only the communication or the work product intentionally waived and only those additional communications or work products that involve the same subject matter, as long as it is clear that the two are related to one another. These limitations will apply to both federal and state cases. When the privilege or protection is preserved under a court order in one federal court, it will be preserved by that order in any other federal court or in any state court. Rule 502 (e) notes that an agreement related to a disclosure in federal court can be made binding on third parties, if the court so orders. Rule 502 is relatively new; therefore, it is best to check the text of the rule itself

Motion to Compel

- Usually, all the parties in a lawsuit will be cooperative during the discovery process. Dates and times for the production of documents are negotiated and adhered to with great regularity. Even when a party objects to the production of a document on the ground that it is irrelevant, the document is often produced anyway. Similarly, objections on the ground that the request is overbroad often will be followed by a narrowed response. However, sometimes the other party refuses to cooperate or makes invalid objections to the request. For this situation, the law provides the motion to compel. Rule 37 of the Federal Rules of Civil Procedure allows a party to file a motion asking the court to compel the uncooperative party to produce the document requested for inspection. - As the paralegal, you may be asked to draft this motion. Again, in preparation for drafting this motion, review your firm's form books and document file or, if necessary, conduct an online search. Generally, however, your supervising attorney will avoid the motion to compel as much as possible. Such motions are not favored by the court and should be used only when your supervising attorney feels no other option remains.

Determining a Target Date

- Whether the requested target date is feasible depends on the number of documents in your client's possession, the extent and the complexity of the ESI request, the number of people in the law firm who will assist in the production, and the availability of tech support for the retrieval and classification of ESI. Moreover, estimating the number of documents and the volume of ESI in a document production can be difficult. Often the first estimate will be revised a number of times, as you locate and review pertinent documents and as you begin to comprehend the vast quantity of the ESI in your client's possession or under his or her control. Nevertheless, you must make some initial assessment of the feasibility of meeting the deadline indicated in the request. Consulting with other paralegals who have been through several document productions and talking with IT personnel about the nature of the ESI request may help you evaluate the deadline.

Categorizing the Documents

- You can make the task of documentation production easier if you divide the request into several general categories. For example, you might divide the request into the following categories: Request 1 Contracts (including preliminary drafts) Request 2 Correspondence (including all e-mail correspondence) Request 3 Corporate Minutes, Bylaws, and Articles of Incorporation Request 4 Material Lists Request 5 Timetables - Once the general categories are developed, subcategories can be easily defined. These categories and subcategories will give your document search a controlling structure that will guide your work.

Cost of the Production

- Your attorney also will consider the cost of having the documents inspected and reproduced. It is also possible, even likely, that your client will have to pay the expenses involved in photocopying paper documents, duplicating video recordings, reproducing audio recordings, scanning paper documents, duplicating flash drives, or having duplicate DVDs, CDs, or photographs made, so your attorney must consider this factor carefully. Additional cost factors may be involved in the recovery of ESI. In order to assure the opposing party that his or her computer data will not be damaged, lost, or compromised during an on-site visit, it is sometimes necessary to hire an outside IT expert to conduct the details of the on-site examination and retrieval process. Such steps will, of course, add to the cost of document production. Therefore, you must inform the client of the extra cost that may be involved in the entire document production process including, especially, the additional cost of ESI production. - At this point in the discussion, we must issue a warning regarding the costs involved in gathering ESI. Traditionally the cost of the production of ESI is carried by the ESI producer, unless the judge intervenes because he or she has decided that "burden or the expense of the proposed discovery outweighs its likely benefit" Rule 26 (b) (2) (C) (iii). Recently some judges have been willing to review this practice. This new tendency on the part of some judges has been sparked by the unwillingness of many attorneys to become more aware of the complexities involved in the discovery of ESI. Some judges have decided to prod those attorneys into solving certain ESI problems by shifting the cost of ESI to the requesting party. These judges feel justified in shifting the costs because, in their view, any extra cost that results from an ill-advised ESI request should be borne by the party that made the ineffective and costly request in the first place