Multiple Productions

  • Initial Disclosures.
  • Relevant Training Documents, seed-sets eliminated in Predictive Coding 3.0.
  • Rolling Productions.
  • Rules of Disclosure, ie Email families, no orphans.
  • Format & Metadata, cooperation.

See Eg. The Sedona Principles Addressing Electronic Document Production, Second Edition, June 2007; The Sedona Conference® Commentary on Non-Party Production & Rule 45 Subpoenas, April 2008.

Regarding phasing of discovery, see eg. U.S. District Court for the Northern District of California Guidelines for the Discovery of Electronically Stored Information at 2.02(d), which recommends that parties discuss in 26(f) conferences:

The phasing of discovery so that discovery occurs first from sources most likely to contain relevant and discoverable information and is postponed or avoided from sources less likely to contain relevant and discoverable information;

The N. Dist. of California has also created a ESI checklist for use during the Rule 26(f) meet and confer process. The checklist includes a section, VI, for discussion of phased discovery :

☐ Whether it is appropriate to conduct discovery of ESI in phases.
☐ Sources of ESI most likely to contain discoverable information and that will be included in the first phases of Fed. R. Civ. P. 34 document discovery.
☐ Sources of ESI less likely to contain discoverable information from which discovery will be postponed or avoided.
☐ Custodians (by name or role) most likely to have discoverable information and whose ESI will be included in the first phases of document discovery.
☐ Custodians (by name or role) less likely to have discoverable information and from whom discovery of ESI will be postponed or avoided.
☐ The time period during which discoverable information was most likely to have been created or received.

Section VII of the California Checklist includes a list for discussion of production:

☐ The formats in which structured ESI (database, collaboration sites, etc.) will be produced.
☐ The formats in which unstructured ESI (email, presentations, word processing, etc.) will be produced.
☐ The extent, if any, to which metadata will be produced and the fields of metadata to be produced.
☐ The production format(s) that ensure(s) that any inherent searchablility of ESI is not degraded when produced.

More detailed descriptions of best practices for Production will follow. In the meantime, if you have any suggestions and care to contribute to this project, or any questions (nothing case specific please), please leave a comment below. As you can see we are just starting work on preparing best practices for this step in the EDBP. There is still plenty of time for you to get in on the ground floor by making a few good suggestions. I am listening, so submit proposed  content or ideas below in the Comments or by personal email to me at


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