With the unprecedented increase in the amount of electronic data that is being created and stored in the corporate community, there has been a corresponding increase in focus on how data that has been collected and reviewed is ultimately produced in civil litigation and regulatory investigations. Because of the complexity, the potential costs and the significant risks associated with producing electronic data, the topic has been addressed in a growing number of articles, white papers and judicial opinions. As a measure of the significance of the topic, production of electronic data is addressed directly in the amendments to the Federal Rules of Civil Procedure.
For example, Rule 26(f) sets an expectation that the method and format by which electronic data are to be produced should be considered and negotiated by the parties early in the discovery process. Proposed Rule 26(b)(5)(B) addresses the inadvertent production of privileged information and outlines the procedure by which this issue is to be dealt with in a case involving electronic data. And proposed Rule 16(b)(5) provides that any agreements reached regarding the assertion of privilege after production will be included in the Scheduling Order. The production of electronic data has presented challenges in the discovery process to the degree that specific rules have been drafted, commented on and redrafted to address the issues.
This section addresses the options and the variables of electronic document production.