Semiannually, I compile a primer on some key aspect of electronic discovery. In the past, I’ve written on computer forensics, backup systems, metadata and databases. For 2014, I’ve completed the first draft of the Lawyers’ Guide to Forms of Production, intended to serve as a primer on making sensible and cost-effective specifications for production of electronically stored information. It’s the culmination and re-purposing of much that I’ve written on forms heretofore, along with new material extolling the advantages of native and near-native forms.
Reviewing the latest draft, there is much I want to add and re-organize; accordingly, it will be a work-in-progress for months to come. Consider it a “public comment” version. The linked document includes exemplar verbiage for requests and model protocols for your adaption and adoption. I plan to add more forms and examples.
Everyone benefits from better informed discussion of forms of production. Most forms specifications are rote and callous. Wanting to get discovery served, requesting parties trot out legacy language ill-suited to modern digital evidence, then rue same when they wake to all they’re missing–often too late to change course.
Producing parties (actually, their lawyers) expend princely sums converting functional ESI to degraded forms for review and production, little realizing how this bloats discovery budgets all along the way. Driven by fear and ignorance, lawyers eschew better, faster and cheaper methods while scrabbling to hold on to the dubious advantages of archaic approaches.
My hope is that the examples in this primer will seep into thousands of requests, becoming the catalyst for more-useful and -timely discussions about utile and economical forms and helping to end perhaps the most persistently poor conduct seen in e-discovery today.
Your comments, criticism and guidance are warmly encouraged. If there are features and content I might add to make the Guide more useful to you, please tell me. In the parlance of software development, this guide is in beta. Let’s squash its bugs, so I might furnish something that will help you and your opponents solve problems and avoid waste. Thanks.