Meet and Confer Rule 26(f) of the Federal Rules of Civil Procedure states that “parties must confer as soon as practicable - and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b)...” as to “any issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced.”

Meet and Confer Too many variables and options for producing ESI, not possible to accurately know what the requesting party will need or want without communicating about it ahead of time. Checklist all the required components prior to the meet and confer to make sure that all areas are addressed. To meet the agreed terms of M&C you must understand the capabilities (and limitations) of the service provider or litigation support team that will be processing the electronic data.

Identify Production Forms The forms of production are: Native – Files are produced in their native format. This production form also may include load files, extracted metadata and searchable text. Near-native – Files are extracted or converted into another searchable format. This production form also may include load files, extracted metadata and searchable text. Near-Paper – Files are converted to a non-searchable image file. This production also may include load files, extracted metadata and searchable text. Paper – ESI is produced in paper format.

Analyze Current Record Set The record set may include word processing files, spreadsheets, , databases, drawings, photographs, data from proprietary applications, website data, voice mail, and much more. To understand what data should be produced in light of the issues specific to the subject case, it is necessary to understand what information is available in the different software applications (or types of documents). Such preparation mitigates the risk of discovering too late that the agreed upon production form is inadequate to provide the discovery needed to address and understand the issues in the dispute or investigation.

Identify Production Requirements FRCP 34(b)(1)(E)(ii) states “if a request does not specify a form for producing ESI, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” File Formats Native– often recommended for files that were not created for printing such as spreadsheets and small databases Near Native– , large databases and data compilations often require some processing in order to be useable when produced Near Paper– rendering an image by converting ESI or scanning paper into a non-editable digital file Paper– paper is copied or ESI is printed to paper

 Scan, classify, and upload to centrally stored and organized repository  Access from anywhere, at any time  Perform complex searches, annotation and redaction with any document  Streamline productions for opposing counsel

Stamps/Labels & Redactions Annotations such as Bates numbers facilitate tracking and managing documents, while confidentiality stamping and redactions may be required before producing documents. Near Paper or Paper format is necessary for those documents requiring annotations. Load Files A load file provides technical information or programming to allow each component of the production (images, full text, metadata fields, native files) to integrate or work together. Each receiving party may have different requirements for the type of load file needed to add the data to its litigation support database.

Prepare Files Refer to scope of Meet and Confer Understand time frames and monitor progress Ensure all parties are updated and “in the loop” No fielded data should be include any attorney work product Prepare an agreed upon load file

Copy Files to Media Copy responsive set to CD, DVD, hard drive or online production(FTP) Production size determines this Consider the time to copy and package and deliver intimeframe

Create Documentation of Productions It is important to create documentation regarding decisions, agreements and the production itself during the production phase. A production can be an ongoing process which spans months or even years. Additionally, a dispute regarding what was produced or how it was produced may arise in the future. The creation of documentation regarding production should begin at the initial meet & confer and continue until the production is complete. Below are the different phases where documentation should be considered. Meet & Confer Prior to production, a document should be prepared and exchanged between counsel which includes production forms, production requirements and media. Prepare Files It may be important to document how the files were prepared for production. The document should include information such as: How the files were exported/converted? How redactions, stamps and/or labels were applied? How searchable text was created? What metadata is included? What load files were created? This document may be used by the legal team to QC the production set and may also be needed if a dispute arises down the road. Copy Files to Media The litigation technology professional should also prepare a document regarding the copy of files to media. This may include the type of technology used to copy the files, any encryption used on the media and any instructions for using load files, an FTP site or an online production tool. Production Log Finally, a log should be generated identifying what was included in the production. Traditionally, this type of log has been kept by paralegals and that tradition can continue. Some of the fields you may want to include are: Date sent; Sent to; Means by which sent; Description of media sent; Components of production; Bates ranges or Document IDs of production; Location of copy of media; Document Request to which production is responsive; Comments

Meet & Confer Prior to production, a document should be prepared and exchanged between counsel which includes production forms, production requirements and media. Prepare Files It may be important to document how the files were prepared for production. The document should include information such as: How the files were exported/converted? How redactions, stamps and/or labels were applied? How searchable text was created? What metadata is included? What load files were created? This document may be used by the legal team to QC the production set and may also be needed if a dispute arises down the road.

Copy Files to Media The litigation technology professional should also prepare a document regarding the copy of files to media. This may include the type of technology used to copy the files, any encryption used on the media and any instructions for using load files, an FTP site or an online production tool. Production Log Finally, a log should be generated identifying what was included in the production. Traditionally, this type of log has been kept by paralegals and that tradition can continue. Some of the fields you may want to include are: Date sent; Sent to; Means by which sent; Description of media sent; Components of production; Bates ranges or Document IDs of production; Location of copy of media; Document Request to which production is responsive; Comments

Quality Control It is important to carefully check the quality of each production prior to sending it to the other party. Check for: General compliance with legal requirements, e.g., no non-responsive or privileged documents included, no documents with conflicting coding (such as marked both responsive and non-responsive). Processed files accurately represent the original native documents, e.g., near paper formats such as TIFF images include speaker notes that would be visible when viewing PowerPoint slides in their native format