Capturing The Landscape Of Incoming Productions: Techniques For Assessing The Documents And ESI Received From Opposing Parties
You have just received a production of documents and Electronically Stored Information ("ESI") in response to your Request for Production. What now?
It is time to unpack what you have received and there are many different methodologies that can be employed to tackle this task. The following are techniques I use to accomplish initial assessment of incoming productions of ESI.
I. Ingest the Production and Conduct Pre-Assessment Work
My first step when opposing counsel provides a production (typically by FTP link) is to send that link to the #eDiscovery service provider we have in place for the litigation. The vendor’s project manager then ingests the production into the document review software and lets me know of any issues or problem that are identified.
While the vendor is doing their part, I pull together any documentation that could be helpful in guiding me through the production assessment, including:
The above information arms me with a picture of what should be in the production by answering some relevant questions at the forefront. For example:
If the ESI Protocol identifies certain metadata fields, and those fields are empty, I have the ESI order/agreement in hand to quickly identify those fields for opposing counsel and request they remedy the deficiency immediately before document review begins. Also, if a cover letter asserts that the first production is of non-custodial data sources, then there is no need for me to waste time determining if all custodians are produced because I know those productions will come later. Additionally, if I know there will be a rolling production, and I see fewer documents for one custodian than another, a different date range, or less information on a topic than I expected to see, then I will know to look out for that information in a future production before prematurely becoming alarmed that ESI is missing.
II. Assess the Landscape of the Production
The next step is to dive into the data. Looking at a high-level overview of what has been produced enables me to get an understanding of the sources of ESI and the content of the ESI. At this phase, I concentrate on what has, in fact, been produced. In addition to looking for red flags and anything that stands out, I also simply look for what story is told by analyzing data volume, time frames, people, and data types. This provides a framework or landscape of the production. All of this assessment work allows me to make an intentional plan for analyzing and reviewing the data in an efficient and effective way, a plan that is often different from a linear review in order of Bates page number.
a. Review a Small Random Sample
If I find value in laying eyes on a few documents at this stage, I do so. Typically, the document review software will allow me to take a small sample of a random selection of documents. When using this technique to get a feel for the data, I like to divide the production into tranches by data source and/or custodian and look at 10-50 documents for each to see exemplars or examples of what kind of information is contained in that source.
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b. Run Search Terms and Review Search Term Reports
I also run search terms and create a search term report to get a visual picture of how many documents hit on the search terms, with and without family (email and attachments), and how many unique hits occur for each term. Unique hits can show how valuable a term is and whether there were false hits that could indicate irrelevant documents were produced.
c. Run and Review Conceptual Analysis
Another tool available through many document review platforms is conceptual analytics, which shows the relevant concepts and terminology in the data, including code words and nicknames that might not have been contemplated during discovery and search term negotiations, as well as how the concepts found in the dataset relate to one another. This is another excellent way of seeing a big picture of the production and/or homing in on important documents, rather than having to build that picture brick by brick through reading documents in a linear fashion.
d. Study the Metadata
One more technique I use is to study the metadata by using filters to pull files names or folder paths with key concepts and, by doing so, identify important documents. Metadata is a rich source of information. Scrolling through thoughtfully filtered file names or sorting and isolating folder paths can quickly get you up to speed on what topics you will encounter once review begins.
e. Examine the Custodians
Yet another approach is to look at which custodians have been produced and cross reference that to the custodian list. I then take each custodian separately and look at the volume of the document produced, date ranges, and search term hits. Next, I compare that to their role and tenure at the company to spot gaps in date ranges and get a feel for their relevant topics. I also may be able to identify additional potential custodians through this work.
f. Inspect File Types
An additional task is to look at file types and what is the percentage of emails, attachments, and stand-alone documents. Are there any atypical sources of ESI being produced, such as text messages or ESI from workplace collaboration tools (such as MS Teams or Slack data)? What file types are they, and what is their volume compared to the production as a whole?
III. Conclusion
Once I have gone through the above exercise, I compare what I have discovered from the data itself to the requests and the responses/objections, along with my knowledge of the facts from other research and sources, to determine the completeness of the production and to make a plan for how to review the production in the most effective and efficient way. By implementing these methods, I gain a fulsome understanding of what has been produced that I can share with the rest of the litigation team even before “document review” has begun.