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Here’s a Suggestion for Curing the eDiscovery Blues

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Make sure you follow FRCP 34.

Have you ever been on the receiving end of an email from opposing counsel with an attached pdf file containing hundreds or even thousands of pages of electronic documents in response to your discovery request?

Or perhaps you’ve been bombarded with countless emails and attached files – pdf or otherwise – that will take forever just to open and organize, much less examine.

These horror stories have become all too common in the age of e-discovery. Unfortunately, if opposing counsel wants to make your life miserable, it’s easy to do so.

“Obviously, the solution for managing something like this isn’t a wild conglomeration of monitors stacked up in the attempt to give reviewers a clear view of everything in that never-ending PDF,” according to JDSupra. “So what can you do?”

There’s still time to register for our FREE, one-hour CLE webinar “Putting Cyber Security to Work in Your Practice” on September 17. Attorney Kevin O’Hagan – a nationally-recognized expert on cyber liability who defends lawyers and firms in malpractice cases – will give you a roadmap for staying safe and successful in these uncertain times. Register here.

1. Review FRCP Rule 34

Rule 34 of the Federal Rules of Civil Procedure governs requests and production of Electronically Stored Information (ESI). It says the documents that are produces should be in a “reasonably usable form” and that the requesting party:

  • Must describe with reasonable particularity each item or category of items to be inspected;
  • Must specify a reasonable time, place, and manner for the inspection and for performing the related acts; and
  • May specify the form or forms in which electronically stored information is to be produced.

2. Consider this proposed eDiscovery Production Checklist from JDSupra.

(Note: This is from the JDSupra website. It is a suggested starting point only. In all circumstances, you should do your own, independent legal research into what your state, federal and local rules – along with any applicable statutory or caselaw – require. Follow your rules to the letter.)

⇒ Documents should be produced as black & white TIFF images at 300 dpi named with the unique Bates number for that page.

⇒ ESI that cannot render to useable TIFF images (e.g. Spreadsheets, Presentations, Video files, Audio files, etc.) should be produced in native format, named with a unique Bates number and corresponding Bates-numbered TIFF image placeholder.

⇒ Scanned paper documents should be produced with logical unitization (i.e. distinct documents should not be merged into a single record, and single documents should not be split into multiple records).

⇒ Extracted text for all non-redacted electronic files containing searchable text should be produced, and all non-searchable or redacted files should be OCR’d. Native files should contain the text of the document and not the OCR version of the TIFF image placeholder.

⇒ Produced documents, images, and placeholders should include sequential Bates numbering, with prefixes consistent throughout all documents.

⇒ Extracted metadata should be produced, including the following fields:

Field NameDescription
BegBatesThe unique document number associated with the first page of a document.
EndBatesThe unique document number associated with the last page of a document.
ParentBatesThe unique beginning document number of the parent document
BegAttachBates number of first family member (parent)
EndAttachBates number of last family member
AttachBatesBates number listing of all attachments in the family separated by a comma
PageCountPage count for a document.
CustodianThe custodian of a document (if applicable).
FromFull email address of Sender
ToFull email address of Recipient(s) separated by semicolon
CCFull email address of Carbon copy recipient(s) separated by semi colon
BCCFull email address of Blind carbon copy recipient(s) separated by semi colon
SubjectEmail subject.
SentDateTimeThe date and time a document was sent (UTC).
ReceivedDateTimeThe date and time a document was received (UTC).
MeetingStartDateTimeMeeting start date/time in UTC
MeetingEndDateTimeMeeting end date/time in UTC
FolderOriginal File Path
AuthorThe display name of the author of a document
FileNameThe file name of a document.
ExtThe file extension of a document.
FileSizeThe file size of a document (including embedded attachments).
DocTitleEmail Subject or Efile Title
CreatedDateTimeThe date and time a document was created (UTC).
LastModifiedDateTimeThe date and time the document was last modified (UTC).
HashThe MD5 Hash value for the email including attachments.
NativeLinkPathThe full path to a native copy of a document (if applicable).
TextLinkPathThe full path to the text file of the document.
ConfidentialityDesignationThe protective order designation (if any) assigned to the document

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