By: Matthew D. Brown
Document Production Generally
The details are in the documents. Most of the information and facts pertinent to the litigation will be contained in documents possessed by the parties to the litigation. “Documents” has a broad legal meaning – in addition to “typical” documents (such as emails, notes, spreadsheets, power points, and contracts), it also includes things like drawings, photos, videos, diagrams and phonorecords.
Once discovery is started, a party has a right to give a list of Document Requests to another party, requesting documents relevant to the litigation in the possession of the other party. When responding to a list of Document Requests, a party has certain obligations and duties to search for and produce responsive documents in its possession, custody or control. Generally, a party has a duty to produce documents that meet the four following requirements:
1. Responsive to one or more of the Document Requests
If it is not asked for, it does not need to be produced.
2. Relevant to the litigation at hand
If the dispute is only about Transaction X, documents relating to Transaction Y do not need to be produced. However, the standard for what is “relevant” is extremely broad and is actually considered to be anything that is “likely to lead to admissible evidence.”
3. In the party’s possession, custody or control
Even if a party is aware of a responsive and relevant document, if the party does not have the document, the party does not have to produce it.
If a document contains communications between the party and its attorney requesting or giving legal advice, the document is protected by the attorney-client privilege. Therefore, even if the document is both relevant and responsive, the document should not be produced.
In some cases, a party may be required to produce documents that contain confidential, trade secret or other proprietary information. In these instances, the parties usually agree to a “protective order,” which prevents an adverse party from looking at another party’s documents that contain confidential business information.
Most businesses store their documents electronically on servers, computers and in other forms of data storage. These documents must be produced along with a party’s physical, tangible or “hard copy” documents. As noted in the overview, once a business becomes aware of pending or imminent litigation, or when litigation is reasonably anticipated, a business has a duty to prevent all documents, including electronic data, from being deleted. For example, if the business’ Outlook server automatically deletes emails more than six months old in its employees’ inboxes, this auto delete feature must be disabled until the litigation is over.
Electronic documentation may contain information not available on its corresponding “hard copy.” For instance, a party may be required to provide a document in “native” form, which might contain metadata, hidden comments, prior versions and tracked changes. Because electronic document production can be so voluminous, many times parties agree to use search protocols to alleviate a party’s burden to search through its electronic records. For instance, if Transaction X is relevant to the litigation, a search might be done in a party’s Outlook servers for all emails referencing Transaction X.
A party can be penalized for its failure to comply with Document Requests or for failing to produce electronic information in the requested format. Thus, a party must make its best efforts to work with counsel and fulfill its duty to respond to Document Requests.
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