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E-Discovery - The Endgame Is Production

The final report in a six-part series on e-discovery from the Taneja Group .

There are a lot of lessons to be learned about e-discovery from the many court cases that have been affected one way or another by the ability to or the failure to produce documents during the legal process. Take the case of Legaretta v. AstraZeneca. When defendant AstraZeneca produced documents for opposing counsel to review, it did not include searchable metadata on the millions of documents. In fact, it included TIFF files that ran to tens of thousands of pages each; some documents were so large that only high-end workstations could open them; and -- the crowning glory -- there were no page breaks in nearly 4 million pages out of 10 million documents.

Ultimately the court dismissed the case, although the judge complained bitterly about the defendants poor production practices. Many other litigants are not so lucky.

Production can seem like the poor stepchild of the e-discovery process. Earlier steps like collection and review directly impact the company. But once the massive body of produced work leaves their premises then it is no longer the company's problem -- it's the opposing counsel's problem. (They asked for this information, and they got it. So there.) In fact, attorneys have been known to use massive production as an arrow in their strategic arsenal. However, courts are not looking favorably on this practice anymore and the risks of poor document production are increasing.

The problem is exacerbated by electronic production. Opposing counsel and the courts demand native formats, searchable metadata, and manageable file sizes. Meanwhile, defendants are aware that many eyes -- not all of them friendly -- will be looking at sensitive documents. Printed documents can be physically redacted and scanned for electronic production, but documents in native formats can make this a much harder task.

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