It's critically important that a single, centralized database of all collected, reviewed and produced data (including opposing and third-party productions) be maintained in a case to ensure that attorneys can rely on a single source for all depositions, motion practice, trial preparation and other such purposes. The issue we'll tackle here is that when “side productions”—meaning one-off productions created outside of an otherwise uniform process—occur, it all too often results in those productions never making it to the centralized database.

The problem such side productions create is clear: They leave counsel without a full picture of the discovery in a case, hampering counsel's ability to effectively and efficiently represent their clients. Plus, these side productions can lead to all sorts of questions and confusion that raise costs and frustrate the legal team. But they are easy to avoid simply by making sure a uniform approach is taken to all productions.

When most attorneys think of e-discovery, they focus on the first parts of the EDRM—who has the data, how it's collected and how to search for and find what's relevant. There is also a lot of focus on document review—how it's done, who performs it and what platforms are used. And that's all obviously very important. But the productions are also critical.

Typically an e-discovery services vendor or an in-house e-discovery team will handle the productions, ensuring the correct files are produced and all protocols are met. Yet, as legal matters proceed, it's not atypical for counsel to create small side productions, which often are done innocuously enough to address a particular set of files or documents.

Sometimes it's simply easier for a law firm, for example, to do small “go and gets,” so they can quickly produce important or specific documents without having to deal with sifting through thousands or millions of documents in the larger database. It's not that such side productions are bad per se—they can clearly serve a useful purpose at times and cannot simply be banished altogether—but it's important that they be considered and treated uniformly as part of the larger discovery and production process.

When such side productions are handled improperly or completely outside the normal process, it can often lead to those documents never making their way into the larger case database. What's more, the process for how those productions are created and reported can vary from case to case, from law firm to law firm and from attorney to attorney, sometimes leading to unnecessary and avoidable discovery disputes.

And, failure to properly track and share those productions with the e-discovery vendor handling the bulk of the productions, for example, can result in overlapping Bates numbers, or worse, make it appear as if parts of the production are missing, which is never good, especially when you're heading into a courtroom.

Here's how such side productions often are discovered:

  • A vendor is retained to manage the e-discovery process and routinely create productions, often in accordance with a formalized discovery stipulation or otherwise agreed-upon production format.
  • Outside counsel, or sometimes even another vendor, creates special-purpose side productions separately, usually including Bates numbering.
  • Those specialized side productions are never provided to the primary e-discovery vendor, so that data never becomes part of the primary production database.
  • As the e-discovery vendor fulfills subsequent production requests, they confirm the next number in the Bates sequence, based on the last batch of documents known to have been produced in the normal course.
  • A gap is then discovered between productions, and the vendor realizes for the first time that some produced documents are “missing” from the centralized database. Or worse, not everyone knows that a side production occurred, so the existence of such side productions aren't discovered until opposing counsel complains of overlapping Bates numbers or gaps in Bates numbers.
  • In the meantime, counsel doesn't have the documents from those side productions in the database and misses those documents, which are often important when preparing for depositions, motion practice and trial.

How do side productions impact the real-life day-to-day progress of discovery?

Consider this example:

Our team at BIA had a case that involved creating one production for a client in one month and another two months later. When preparing the latter production, we discovered a gap in the sequential numbering. Only then did we learn that counsel had done some side productions that never made it into the otherwise uniform process—and more importantly, never made it to the centralized database.

That meant that for at least two months, anytime counsel was searching the database when preparing for depositions and motion practice, those critical documents simply weren't there, giving them an incomplete picture and hampering their ability to fully understand the facts of the case and effectively represent their client.

When that happens, it also can cause questions from the opposing party: What have you withheld? What have you skipped? And those involved in creating such side productions have to remember why that was done and where those files now exist. This can be especially difficult if counsel changes during a litigation because new counsel likely will not know how to explain why there seem to be documents missing, creating quite a mess.

While situations like those outlined above most likely wouldn't give rise to sanctions, it would bring into question the completeness of production, which, frankly, causes a lot of stress, increases costs unnecessarily and even could hurt the perceptions of the reliability of the entire discovery process, hurting the case overall.

So, what is the solution to the problem of side productions?

1. Have one, and only one, single, centralized database. That database should be searchable, and it should include all produced documents (including opposing and third-party productions) in one spot, with no gaps.

2. Counsel and the vendor should always confirm together the next Bates number in the production sequence when starting a new production set. And all parties should confirm that they are using the same Bates number formatting, regardless of who does a production. That simple step will ensure that both the law firm and the vendor are on the same page, will avoid any gaps in the Bates numbering and will guarantee that everyone knows when such side productions are created in the first place (which is half the battle in itself).

3. Always make sure that any side productions are provided to the vendor for loading into the review tool at the same time those documents are produced to the opposing party.

4. And for absolute completeness, always make sure that any opposing party or third-party productions are likewise provided to the vendor in a timely manner when received so that they can be loaded into the centralized database, creating a single, reliable resource for all discovery information.

Confirm with your e-discovery vendor that it will validate the tracking and documentation of all productions—and that all produced documents will be kept in one place. You want a vendor that will watch your back by having complete databases and ensuring the right side of the EDRM finishes just as strongly as the left side started, so your litigation can go as smoothly as possible. Then counsel can rest assured that all the data they need is available to them in one, easily searchable database.

Barry Schwartz, Esq., CEDS is SVP, Advisory Services at BIA, a leading national e-discovery and digital forensics company. Barry Schwartz is highly proficient in discovery and document review matters and holds more than 35 years of legal and business consulting management experience. He oversees BIA's advisory division and is primarily responsible for providing consulting and advisory services to BIA's clients.