From Boxes Of Documents To Gigabytes And Meta Data: A Guide To Antitrust Document Production In The 21st Century - Part II

Thursday, January 1, 2004 - 00:00

In organizing production, determine early the level of technology that will be employed to manage the hard-copy and electronic documents that are collected for review and later production. At the most basic level, all document requests ask you to find and produce responsive materials. There are, however, a number of options concerning how to organize the documentary materials that you are going to produce and that you are going to maintain in-house for use in your affirmative case.

Hard-copy Materials. You may simply choose to make a copy set for review (assuming that you do not have to produce originals, as may be the case in criminal investigations), Bates label the responsive materials, and then copy the Bates-labeled set for production. Although this low-tech approach does accomplish one part of the mission - producing documents - it does not provide a means of capturing information about the documents for later use by the company and counsel. For that, counsel and the client should consider scanning the documents for export into a database and then coding the documents, either by using coding sheets that can be processed so that the information can be added to the database or by coding the documents on-line, to capture relevant, substantive information about the documents. Going a couple of steps beyond the approach outlined above, one could also capture certain objective information about the document, i.e., the author, recipient, and copyees on a document, the subject line of the document, its date, and mentionees found in the text of the document, and add that information to a database. OCR - optical character recognition - is an option, too. With OCR technology, typed text is processed so that it becomes full-text searchable. Although not perfect, OCR can provide the "belt and braces" for a database.

These options vary greatly in price and the option or options selected will profoundly influence how the documents are collected and subsequently handled. Therefore, it is important to decide the answer to this question early in the process. Timing may also be a factor in choosing the level of technology to be employed. Finding the right service provider and the right services for the right price takes time. Processing materials for inclusion in a database, including time needed to quality control the input, also takes time.

Electronic Media. There are also a number of considerations for how to handle electronic media. Whether to produce e-media in electronic form is the most basic issue that must be addressed. The answer to this issue may well depend on your litigation strategy, how the request for e-media was cast, and the prevailing case law in your jurisdiction. Indeed, more and more requests specifically seek electronic data in a searchable, electronic form, along with so-called meta data, which provide information about the data collected, such as information about the data's creation, when the data were last modified, who prepared the data, and, in the case of e-mails, the recipients of the e-mail, copyees, and blind copyees.

The decision to produce electronic media in electronic form also raises numerous issues. For example, you may need to consider whether to produce the media in "native file format," such as Word or Excel , or whether to make the information available in a standardized format, such as TIFF, HTML, or PDF. Although producing information in native file format may seem appealing, it does have its downsides. To begin with, you will need the particular application to review the files in native format. This may require the purchase and upkeep of dozens of applications. Your ability to review native files and prepare a database to capture information about the documents under review may also be limited. Furthermore, working with electronic documents in native format could lead to the inadvertent alteration of the documents or the meta data associated with the document. Furthermore, you cannot readily and permanently electronically Bates label documents in native file format.

Processing electronic data to a standardized format, like TIFF or PDF, is an attractive alternative to producing e-media in native file format. Although differing slightly in detail, depending upon the system chosen, this process works in the following manner: electronic media is "harvested" by one of several service providers, converted to a standard format, and then housed in a web-based vault for review. During the conversion process, the service provider can eliminate duplicate copies of documents or e-mails, as well as perform other value-added services, such as search for key words or phrases or look for media belonging to specific custodians. In addition, one byproduct of this process is the creation of word-searchable text. Once converted, the data are housed in a secure vault. Reviewers can review the data on-line and perform on-line coding of that material. At the conclusion of this process, selected data, e.g., that designated responsive and not privileged, along with its meta data, can be electronically Bates labeled and produced to the requesting party.

Executing Your Game Plan

The speed with which documents can be gathered, reviewed, and produced is, in large part, a function of the amount of preparatory work performed before the issuance of the request and of the resources devoted to the job. Thus, antitrust counsel and the client should immediately complete the tasks outlined in the "pre-production checklist."

In addition, now that the request has actually been issued, it may be important to consider whether there are areas for narrowing its scope. For example, the request may seek information from people or locations outside the U.S. that may have only a tangential, if any, connection to the case or investigation. Similarly, the time frame of the request may be expansive. Because decisions about these and related issues can greatly impact the course and cost of litigation, sufficient time needs to be spent in anticipation of any Rule 16 scheduling conference or negotiating session with the government to spot problematic areas and to prepare a persuasive case for modifying the request.

As with many other areas discussed in this article, these efforts can certainly effect the company's document production burden. Obviously, limiting the number of people or places to be searched can have a major impact on costs. Similarly, limiting the number of persons from whom electronic media is to be produced or the time period for which discovery of electronic media is sought can greatly reduce costs. Be warned, however, that in seeking these and similar limitations, counsel and their clients cannot rely on vague assertions of burden, cost, or inconvenience. Therefore, the parties must be prepared to quantify, in a verifiable way, the differences in burden and expense between that which has been requested and that which is proposed by the client.

In moving forward with the production, there are some additional procedures that can be employed to facilitate the production process.

• Inform people of the request quickly and issue instructions to preserve all documents (including electronic media) that may be responsive to the request.

• Consider creating an executive summary of the request that can forwarded to people to bring them up to speed about the more important aspects of the request.

• Develop a general plan so that everyone involved in the request response is clear about how the response is going to take place (e.g., the general flow of documents and related materials) and about any conventions or interpretations that are going to be employed in responding to the request. For example, determine what constitutes a "hot" document and how you are going to designate "hot" and privileged documents.

• Be sure to keep members of the team up to date on any language changes in or modifications to the request.

• Designate a central contact person in the company who will act as an ombudsman for the client and the personnel collecting and reviewing the documents. The ombudsman needs to be of sufficient rank to get the attention of other employees and will act as a clearinghouse of information for both the production team and employees of the clients. Having a designated person to go to for questions about the company, its policies, and personnel will speed review and minimize the possibility of faulty or incomplete information infecting the collection and review process. The only thing worse than no communication is inconsistent or erroneous communication. The ombudsman will function to "get the word out" about the production team's mission and why cooperation is important. The ombudsman can also serve as a "sounding board" for persons who are concerned about the production or who have special needs (such as scheduling conflicts) that may have an impact on the second request response.

• Determine if members of any traveling sales force need to be contacted about the document request and begin efforts to collect their materials as soon as is practicable.

• Prepare document control or tracking sheets for use when collecting hard-copy documents. Consider using a "dual receipt" system, in which one control sheet is affixed to the document or file that is to be removed from its location and a matching sheet is left behind to identify its location. This system reduces uncertainty when the time comes to return original files and documents to their original location.

• Prepare indices and document logs that track the flow of paper and keep them up-to-date. They should be used to track documents/files throughout the production process so that at any time you know whose office has been searched, whether any files have been taken, and, if so, the location of those files (e.g., awaiting review, being reviewed, at the copier, ready for refiling).

Conclusion

Successfully responding to a document request starts long before the receipt of an actual demand for documents and electronic media. A viable document retention program, one that is enforced and that includes electronic media, is critical to reducing the burden and expense imposed by the typical document request. Once the possibility of a request appears on the horizon, there are a number of issues that need to be considered and a number of steps that can be implemented to assure timely and efficient compliance. In sum, the demands of civil litigation or of responding to a governmental investigation - in terms of timing and expense - place a premium on preparation and the execution of a well thought out and fully developed strategy.

Robert B. Wiggins is Of Counsel in the Antitrust Practice Group in the Washington, DC office of Morgan, Lewis & Bockius LLP. Questions may be addressed to him at rwiggins@morganlewis.com.

Part I of this article, which appeared in the December 2003 issue of The Metropolitan Corporate Counsel, addressed the need for an effective document retention program and gave practical tips for organizing production as the critical first step in responding to a document request.