#6 Pretrial Agreements – Pick Five Custodians For Production

06 Electronically Stored InformationEach Side Will Pick Five Custodians for Production of Electronically-Stored Records.

Electronic discovery has become the most expensive and time-consuming part of the pre-trial practice in most cases.  But pre-trial agreements can help to reduce the burden.

Electronic discovery is so burdensome because requesting parties seek overbroad production of electronic documents, and because producing parties try to conduct a relevance and privilege review of every single electronic document.  In some large cases, each side will end up having several young lawyers spend weeks on end conducting relevance reviews of dozens of custodians’ electronic files.  This is extremely expensive, and not terribly useful.
Parties can greatly reduce the burden and hassle of producing electronically stored information by focusing only on those custodians who really matter.  Moreover, the parties can agree not to conduct a time-consuming relevance review prior to production.

In our cases, we like to propose that each side must initially produce electronically stored information from the files of five custodians selected by the other side during an agreed period of time.  Only documents which have a lawyer’s name on them can be withheld from production, and only then if they are actually privileged.  Production does not waive any privilege, and documents can be snapped back whenever the producing party recognizes that they are privileged.  After analyzing the initial production, each side can request electronic files from five other custodians.  Beyond that, good cause must be demonstrated.

This procedure gives both sides the assurance that, in all likelihood, they will not have to gather electronic documents from more than ten custodians.  It also gives both sides the assurance that the other side cannot withhold documents because of obscure or unfounded relevance objections.  The parties will simply screen out electronic documents that list lawyer names, determine whether the screened-out documents are actually privileged, then produce what is not privileged.

One objection we sometimes hear is that some cases have more than ten relevant custodians per side.  The parties can always ask the Court for electronically stored documents from more custodians.  But from our experience, that rarely is necessary.  When is the last time that the key email in your case was neither sent to nor received by one of the top ten most important witnesses on either side of the case?  In our experience, ten custodians will usually be more than enough to capture the relevant documents.

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