More Steps Involved in Making a Document Production
The first step in making a document production is gathering your clients’s documents and coding each of them for responsiveness and privilege. But the work does not stop there.
Next a lawyer needs to redact partially privileged documents, generate a privilege log, and then export the production in a unique format.
Why should you keep reading this post about document productions?
If you read the first post about document productions, you may not want to continue living in suspense without knowing the thrilling conclusion to my commentary on the subject.
You’ve heard that litigation is the most exciting legal practice area and you’re looking for evidence to the contrary.
You’re tired and want to read something to help you drift off to well-earned sleep.
Lawyers Need to Redact Privileged Communications
As I discussed earlier, a lawyer (and likely her team) uses e-discovery software to mark each document that contains privileged communications between the client and the client’s attorney.
But often, an employee of a corporate client will forward the attorney’s advice to other employees and add some commentary of her own. In that situation, the employee’s additional comments are not generally protected by the attorney-client privilege and are usually produced in discovery.
For each such document, the attorney must redact the communication to or from the attorney, but leave legible the non-privileged communication.
People used to redact documents with ink, but now e-discovery software can redact documents (Image Credit).
Lawyers also need to make sure that documents are coded for privilege and redacted, even if the documents are not responsive to a document request. This is because a document may be produced because it is the family member of (attached to or embedded in) another document that is responsive to a document request and is thus subject to production.
The Format for Document Productions is Unique
When I worked with my first document production, I expected lawyers to exchange a USB drive full of Word documents, .msg email files, PDFs, and Excel spreadsheets.
But the standard for document productions in commercial litigation is to make greyscale TIFF image files for each individual page of emails, PDFs, Powerpoint presentations, and Word documents. So instead of producing a 50 page Word document, a party may produce that document as 50 TIFF images. That may sound crazy, but it allows the parties to put page numbers on each page (called “Bates numbers”) so that the pages can be referenced later. It also standardizes what the document looks like for different people viewing the document on different computers or as a printed document.
Some files do not work well in TIFF format. For example, Excel spreadsheets often have formulas and format issues that require a computer to view properly. For files like these, lawyers produce a blank TIFF image that just contains a Bates number (called a “slip sheet”) and then produce the original document in its native format.
In addition to these documents, the e-discovery software will also generate a “load file".” The load file tells the recipient of the production what TIFF images can be grouped together into one document (e.g., Bates numbers 3-16 are a single 13 page document) and information about the document, which lawyers call “metadata” (such as its creation date and original file name). Load files will also identify what documents are “family members” of other documents (e.g., Bates numbers 20-25 is an email whose attachment is Bates numbers 26-29).
Lawyers May Also Need to Generate a Privilege Log
In many litigations, lawyers also need to generate a list of each document that would have been produced, but was not because of the attorney-client privilege. This list may also need to include communications that were redacted from produced documents. This list is called a “privilege log.”
The privilege log provides opposing counsel with enough information to assess whether the communication was properly withheld and, if she disagrees, to demand that it be produced. A privilege log normally lists the sender of a communication, its recipient, the date of the communication its general subject matter, and the legal basis for withholding the document.