What Is Production of Documents? A Simple Explanation

  • Will Pfeifer
  • July 16, 2021

Companies today are producing more and more data than ever before. For this reason, legal teams need to have a system in place for efficiently producing electronically stored information (ESI) during trials and investigations. 

Keep reading to learn more about document production and also how it fits into the eDiscovery process. 

What Is eDiscovery?

Before two opposing teams meet in court, they go through a process called legal discovery. This involves exchanging evidence and setting ground rules for the trial. At a core level, discovery ensures a fast and fair experience for both parties.

While discovery refers to tangible objects—physical documents and paper forms—eDiscovery covers digital information, such as files, images, and videos.

During eDiscovery, the two sides request and exchange digital evidence as they prepare for their day in court.

How eDiscovery Works

Most companies today follow the Electronic Discovery Reference Model (EDRM), a widely used industry framework that offers suggestions for managing ESI. It remains a go-to reference for law firms and corporations across all verticals. 

While you can create your own eDiscovery strategy, the EDRM can help guide your efforts. In other words, there’s no rule that says you absolutely need to follow it.

The 9 Stages of eDiscovery 

While there are nine stages to EDRM, they do not have to take place in any particular order. Your team can move, skip, add, and even repeat stages when moving through eDiscovery. Think of this as a foundation or reference point that you can modify and expand as you need to.

1. Information Governance 

Information governance involves creating a system to manage data and reduce risks. Companies should strongly consider developing an internal information governance strategy to secure ESI and reduce information sprawl. 

2. Identification 

Identification entails discovering ESI across different databases, devices, and users, and validating sources and systems.

3. Preservation 

Preservation protects ESI from destruction and manipulation during an investigation. The purpose of preserving data is to mitigate risk.

4. Collection

Collection involves extracting information from databases, devices, and applications. This requires utmost care and precision. The EDRM recommends forming a collection strategy, preparing a plan, selecting the right collection method, and then executing the plan and pulling ESI.

5. Processing 

Processing involves reducing data volumes. During the processing stage, you may also need to convert data to make it presentable in court. 

6. Review 

Review entails evaluating and organizing ESI to understand the content you’re working with. 

7. Analysis 

Analysis is all about discovering facts, circumstances, and evidence for an investigation or litigation. As the EDRM explains, analysis occurs throughout many stages of eDiscovery. 

8. Production 

Production is the process of delivering ESI to key stakeholders. 

9. Presentation

Presentation involves displaying ESI during depositions, trials, and hearings.

Document Production: An Overview

When producing documents in court, you distribute nonprivileged ESI to a requesting party. 

It’s necessary to deliver ESI in an appropriate form that both parties agree to. Another thing to remember is that data production should take place only after thoroughly reviewing, analyzing, and culling it.

The 5 Stages of Production

The EDRM recommends a five-stage process for producing ESI. Let’s check it out in detail.

1. Confirm Forms of Production

It’s a good idea to meet with your technical team early in the process and share the eDiscovery request. It’s also necessary to share the production form, method, and content that both sides agreed to.

By sharing this information, IT can gain a complete picture of what the other party is requesting, which expedites the process. 

2. Data Analysis

Next, you’ll need to analyze the records and come up with appropriate production forms. 

The EDRM suggests reviewing its Processing Guide to understand how processing impacts different types of forms. 

For example, converting a PowerPoint presentation into an image could render speaker notes invisible. There are four types of production forms: native, near-native, image (near-paper), and paper.

3. Identify Production Requirements 

Records often contain many types of documents, like spreadsheets, files, databases, drawings, and photographs. You’ll need to understand the information in each software application in order to understand what type of data you need to produce. 

4. Prepare Files 

In this step, you prepare documents for production. To clarify, delivery needs to align with the protocol that both parties agree to during the meet-and-confer session and with any directives stemming from judicial proceedings. 

5. Copy Files to Media

Once the data is ready to export, you’ll need to copy it to an appropriate type of media. For example, this may include a portable hard drive, CD, or DVD. 

Another key point: production size typically determines the appropriate media type. Don’t take this step for granted. Instead, work with IT to determine the best possible approach.

How to Respond to a Production Request 

For guidance on responding to an eDiscovery request, see Rule 34 of the FRCP.

Rule 34 allows a party to serve a request for ESI, such as writing, drawings, charts, graphs, photographs, images, sound recordings, and other data and tangible things. Further, it permits entry onto the responding party’s property for inspection and testing.

Rule 34(b)(2) covers responses and objections. It says that a receiving party must respond to a request in writing. This must take place within 30 days of the serving date or within 30 days after the parties’ first Rule 26(f) conference. The court can issue a shorter or longer time under Rule 29.

Digging Deeper

Rule 34(b)(2)(B) offers guidelines for responding to each item. For each item or category, the response needs to state that inspection and related activities can take place. Or, it must state the grounds for objecting to the request and why. 

An objection must state whether you’re withholding any responsive materials on the basis of that objection. On top of this, if you’re objecting to part of a request, you need to specify the part you’re objecting to and permit inspection of the remaining requests. A response may also state an objection to a form request for producing ESI.

Rule 34(b)(2)(E) provides guidance for producing documents and ESI. It says that a party must produce documents as they exist in the usual course of business. Otherwise, the party must label them to correspond to the categories in the request. 

What’s more, if a request doesn’t specify a form for producing ESI, the party needs to produce it in an ordinary or reasonable form. It’s worth noting that a party doesn’t have to produce the same ESI in more than one form.

Finally, a nonparty—such as a partner or a vendor—may have to produce documents and tangible things or permit an inspection.

How Venio Simplifies Production

Suffice it to say that the eDiscovery process can be costly, complex, and risky. As such, legal teams need to exercise caution when producing documents to comply with FRCP rules and avoid court sanctions. 

The best way to streamline eDiscovery production is to use an end-to-end eDiscovery platform like VenioOne. This platform brings together all ESI into one complete, secure, and unified system, enabling you to get through eDiscovery with ease. VenioOne makes it especially fast and easy to process, cull, produce, and present data. It can lower risks and speed up your workflows. 

To see VenioOne in action, request a free demo today.

This post was written by Justin Reynolds. Justin is a freelance writer who enjoys telling stories about how technology, science, and creativity can help workers be more productive. In his spare time, he likes seeing or playing live music, hiking, and traveling.