eDiscovery Without the Endless Battles

If your lawsuit involves documents, many of those documents are likely to be in electronic form. Whether your client is an individual or a large corporation, the evidence for your case is likely to reside in an electronic device—or many electronic devices—controlled by your opponent, your client, or a third party. Recently, a group of larger corporations reported that 31 percent of them found it difficult to retrieve all documents subject to discovery.¹ This was true despite the fact that 36 percent of them spent over $1 million per year and 15 percent of them spent more than $10 million locating electronic documents for litigation.²

If these sophisticated companies have trouble handling electronic documents in litigation, how are we—persons trained as lawyers but rarely in computer science—to fulfill our discovery obligations and protect our clients form the risks inherent in the preservation, collection, and production of electronic documents in discovery? First, we must appreciate our obligations in the discovery of electronic documents. Second, we must appreciate the risks to ourselves and our clients, and we must develop or maintain a modest level of competence regarding the available techniques for electronic discovery.

The duty of tech competency

In August 2012, the American Bar Association amended the Model Rules of Professional Conduct to provide that a lawyer should keep abreast of the “benefits and risks associated with relevant technology.”³ Many states have amended their rules to specifically provide for competence in technology.⁴ Minnesota Rules of Professional Conduct do not specifically refer to technology but provide:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.⁵

With respect to electronic records, competence includes:

1. the ability to understand the client’s electronic communication, storage, and backup system;
2. the knowledge to implement an electronic records preservation program;
3. understanding of the viable alternatives for collecting a client’s electronic records;
4. awareness of the options to search for responsive documents in an effective and efficient manner; and
5. the ability to cooperate with an opponent to provide and receive relevant electronic information while minimizing expenses.⁶

Understanding e-discovery risks

Competence in these areas can avoid many of the risks associated with discovery of electronic documents. The risks begin when the client fails to preserve relevant electronic records. Rule 37(e) of the Federal Rules of Civil Procedure provides for sanctions where a party unintentionally fails to preserve relevant documents, resulting in prejudice to the other party.⁷ Monetary sanctions are typical for this behavior, and the injured party may be allowed to offer evidence of the spoliation.⁸ Where the court finds that the client intentionally destroyed the documents, Rule 37(e) allows the court to employ more severe sanctions—including an adverse inference instruction, entry of default judgment, or dismissal of the case.⁹ Significant monetary fines often accompany the finding that spoliation was intentional. 

The attorney whose client fails to produce relevant electronic documents is also at risk for sanctions by the court. It is the attorney who signs responses to document requests and is responsible for their veracity.¹⁰ Primary counsel may certainly hire discovery experts, including knowledgeable counsel, but it is the primary attorney who remains responsible for the actions of the team. Failure to adequately supervise, due either to lack of knowledge or lack of attention, can result in liability for the attorney.¹¹ The attorney has a duty to the court to disclose document spoliation and the failure to make the disclosure can result in disciplinary action.¹² An attorney who fails to properly advise a client on document retention, fails to supervise others, or fails to protect attorney/client privileged documents can face malpractice claims from the client.¹³

To avoid these risks we do not need to be perfect—perfection is unlikely in managing any significant volume of electronic documents. Our efforts do not need to be heroic, but they do need to be reasonable, in good faith, and guided by a general understanding of the technology.¹⁴ Now that you are attuned to the need for knowledge and attention to this subject, the remainder of this article will discuss specific e-discovery pitfalls and best practices to avoid them.

Cooperation with opposing counsel is required and can benefit your client

Rule 26(f) requires that the parties discuss and report to the court on the method of preserving documents, the method for locating relevant documents, and the form of document production.¹⁵ These requirements provide an opportunity for parties to save expenses and time in the discovery process and establish a framework for the production of relevant documents in a useable format. All too often parties do not discuss these issues, let alone reach agreement. They then engage in expensive and time-consuming discovery battles with one or both parties ordered to conduct costly additional document recovery, review additional documents, sort documents in more effective ways, re-produce documents in a different format, or suffer the penalty of a spoliation jury instruction.

To have meaningful discussions with opposing counsel, a reasonable degree of transparency is necessary.¹⁶ It is hard to have a meaningful discussion if neither party knows how the other will approach discovery. The first step in having a meaningful discussion is understanding your client’s own documents, including the kinds of documents available, how they are stored, the potential volume for collection and review, the existence of barriers to collection, and whether data has been lost. Exploring these issues early in the life of a case—and before you commit to an approach to discovery—is critical to ensuring that you do not make commitments you cannot keep. 

To frame the discussion, it is helpful for the parties to exchange early document requests before the Rule 26 conference. The time to respond won’t start to run until the actual Rule 26 conference, but it will give each party more insight into the scope of possibly relevant documents. Disputes regarding discoverable information can be identified early and perhaps resolved. At the least, each party will be forewarned about what the other regards as relevant information. Parties would do well to provide each other with details regarding the litigation hold provisions and the custodians who will receive it.¹⁷ If there are objections, a party can be forewarned and will have an opportunity to consider whether to amend its procedures. The lack of objection will make it difficult for the opponent to raise an objection after the party has gone through the collection process. The parties are also required to discuss the form of document production. If a party will accept paper production delivered by PDF, unnecessary time and expense can be saved by letting the producing party know as much in advance. Agreeing to one form that all parties can use will save processing costs for both.

Courts generally find that producing parties are best suited to determine the appropriate method to locate and produce relevant information.¹⁸ A party normally will not be required to disclose its methodology in the absence of a showing of some deficiency.¹⁹ However, going it alone without consultation and cooperation may result in expensive motion practice and redundant discovery efforts that a more measured and cooperative approach can avoid. Perhaps the most difficult area of cooperation is on search methodology. The requesting party often wants very broad search parameters while the producing party tries to keep the parameters tight to avoid having to review massive numbers of documents. An exchange of information on search methodology may avoid some disputes, and understanding your client’s documents early in the case can help guide discussions and provide a foundation for proportionality arguments, should the parties be unable to reach agreement.²⁰ As a practical matter, a party may consider it necessary to disclose its methodology—and face scrutiny regarding that methodology—when responding to a discovery motion.

E-document retention can be a challenge

There has long been a common law obligation to preserve evidence for likely or actual litigation. This duty clearly extends to electronic data.²¹ The duty arises or is triggered when litigation is reasonably foreseeable.²² Where there is a reasonable and credible anticipation of litigation, the obligation to preserve data attaches.²³ For a plaintiff the obligation will attach no later than the filing of a complaint and may attach when an attorney is first consulted regarding the claim or even earlier (e.g., at the time of a loss) if a claim was obvious.²⁴ For a defendant the obligation to preserve electronic documents will arise no later than the date a complaint is served and may arise with the receipt of a demand letter, when counsel is consulted regarding a likely claim, or when facts make a claim reasonably likely.²⁵ It is counsel’s obligation to inform a client that the preservation obligation is triggered.

The next immediate question is what information must be preserved. In general, information that is likely relevant to the claims or defenses in the anticipated litigation must be preserved. The likely probative value of the information and the burden of preserving the information are considerations. The difficult issues often involve determining where the information resides and whether is it likely to be deleted if appropriate preservation steps are not taken. First, counsel has to weigh the likely complexity of the task and decide whether more e-discovery expertise will be needed to manage the process. Next, arrange an early meeting with the client. For individual clients, check the use of computers, cellphones, and social media. For a company, ask for identification of all of the types of devices that the company’s employees used for business communication (including personal mobile devices used for business purposes). 

Also, ask for internal memos that describe the client’s electronic systems and polices. For a client with multiple players, identify the persons (custodians) who dealt with the issues in the case and identify their methods of electronic communication.²⁶ Consider whether any of these custodians have an incentive to destroy evidence so that immediate preservation efforts, such as device imaging, should be employed. In many settings, including social media use and complex company systems, it is necessary to understand where electronic documents of different types are stored and what automatic purging systems are in place for each system. Are there photos, diagrams, or spreadsheets that are created, stored, or deleted differently than messaging systems? Are there backup or archived tapes that contain relevant information and can be preserved? Are there legacy systems that may contain relevant data? Is there an ability to shut off certain auto-destruct systems? Is it more cost-effective to preserve data in other ways, such as immediate imaging?²⁷ 

After learning the essentials of the client’s systems and identifying the likely custodians, counsel has an obligation to advise the client on how to properly preserve electronic information.²⁸ Typically, the instruction from counsel or the company to preserve information is in writing. This is good practice in case there is a later dispute about whether appropriate preservation steps were taken. The hold letter should be directed to the custodians who are likely to have relevant information. It should describe the claims or potential claims, the types of relevant information, and the timeframe. It should describe how the information should be preserved and who to contact regarding questions.²⁹ Custodians to whom the hold letter is distributed should acknowledge receipt of the hold letter in writing.

Be aware that aspects of this process must be discussed with the opponent. The Federal Rules require that parties discuss issues about preserving information at the mandated Rule 26 meet-and-confer. The position of the parties on preservation is to be included in the discovery plan presented to the court.³⁰ With the emphasis in the Rules on cooperation and transparency in discovery, consideration should be given to seeking agreement on the terms of a preservation notice to avoid later disputes. Alternatively, the completed hold letter could be shared with opposing counsel as part of the Rule 26 conference. At the least, the preservation letter should be written with the understanding that it may have to be provided to the court in the event of a later dispute: While the hold notice may be attorney-client privileged and work product, defending against a claim of spoliation may require its use.

Conducting interviews with potential custodians is important to understanding what data must be preserved, including how the custodians typically communicated regarding the issues in dispute, and whether there are other individuals with potentially relevant information that you have not yet identified. If custodians used personal mobile devices or social media, you will need to take immediate steps to preserve this information so that auto-delete functions don’t destroy it.³¹ Personal mobile devices are also particularly susceptible to being lost or damaged, potentially resulting in data loss. Interviewing a few key custodians allows you to personally reinforce the preservation requirements and make sure that the requirements are understood by the most central custodians. With individual clients, checking for text messages and the use of social media like Facebook is vital.

Counsel has a continuing obligation to work with the client to ensure that relevant information is being preserved.³² It is well known that simply sending a hold letter is not enough, because custodians may neglect or forget the obligation.³³ In addition to personal visits with key custodians, consider periodically reissuing the hold notice.³⁴ With amended pleadings and new discovery requests, review the preservation notice to make sure it covers any newly raised fact issues.

How the electronic documents are gathered matters

Gathering the documents properly can avoid spoliation claims. Simply asking custodians to keep or print relevant electronic documents can lead to disaster when individuals don’t follow through or your opponent insists on the production of metadata that will not be fully present in hard copies.³⁵ Where electronic information will be collected manually, it is appropriate to have someone with technology expertise assist the custodians in locating and transmitting responsive data to a depository.³⁶ 

Where the volume of data is very substantial, automated systems can be used to collect information that may be relevant. Key words, date ranges, folder types, and other broad descriptors can be used to reduce volume but collect much of the responsive information. Some types of documents, such as spreadsheets and diagrams, may not be easily located with key words and will need to be located separately. Whatever the process, it is necessary that counsel be involved to understand the process and conclude that it is adequate. Typically, one attorney with an adequate understanding of collection, processing, and production techniques should be responsible for all three phases so that responsibility is clear and decisions are consistent.

It is important to collect the data in a form that will be acceptable to the opponent and useable by your side in sorting and then displaying helpful information. Collecting data in one form only to learn that another form is required will multiply costs. To do this correctly, it is necessary to reach an early understanding with your opponent regarding its expectations for production format. At the same time, you will need to understand the system your side will use to sort and display the electronic data.

Technology can limit the cost of manual review—with considerable risk 

Once a party has collected a set of documents that may be relevant to the dispute and responsive to the opposing party’s document requests, there are two difficult steps remaining before production. First, it is necessary to separate the relevant documents from the great bulk of irrelevant material. Second, it is necessary to identify, and set aside from production, the attorney-client and work product material. No method of review is perfect; whether an attorney looks at every document to determine whether it is relevant or privileged, or whether you use technology-assisted review, it is likely that some irrelevant documents will be produced, and relevant documents will be left behind. However, you can—and must—identify a defensible process to complete these steps.

These tasks can be performed by attorneys manually reviewing all the documents. Where the number of documents is modest, this is the appropriate procedure. But where the volume of documents is large, the cost of manual review becomes excessive and the time required for manual review becomes a hindrance to completion of discovery.

Keyword searches have often been used to identify relevant documents or cull the universe of documents for manual review. Use of proximity searching (one term within a certain number of words of another) can improve the reliability of search terms. Nevertheless, keyword-searching techniques have often led to unnecessarily costly reviews, disputes, and both over- and under-production of documents.³⁷ While it is certain that keyword searches will both miss relevant documents and include many irrelevant documents, there are appropriate means to determine and improve the accuracy of keyword searches. Select a random sample of documents and run them through the keyword search and a manual screening process. The results will indicate the level of accuracy of the keyword search and suggest measures for improvement.³⁸

Various forms of technology-assisted review are accepted by the courts, and recognized as more effective than keyword searches.³⁹ There are a number of variations on this methodology, including passive learning, simple active learning, and continuous active learning; these methodologies can be used either in place of, or in conjunction with, keyword searches. Essentially, a set of relevant documents is identified, typically through manual review of a statistically valid random sample, and the computer is programmed to identify similar documents within the document collection. What is done with those similar documents depends on the type of technology-assisted review protocol being used.

In a traditional predictive coding model, sample sets of documents are reviewed until acceptable rates of recall (the percentage of relevant documents identified) and precision (the percentage of irrelevant documents identified as relevant) are achieved. Then, the documents identified as responsive are produced, usually following review for privilege. Keep in mind that, to the extent that you use a traditional predictive coding approach, you may be required to disclose your sample sets and how you coded the documents—which will necessarily include non-responsive documents. 

Technology-assisted review is increasingly being used to prioritize documents that are likely to be responsive for purposes of a more traditional, manual review, often using continuous active learning. Typically, as with a traditional predictive coding review, a statistically valid random sample is reviewed, and documents are rated by how likely they are to be responsive. As the name suggests, a continuous active learning protocol is continuously updated and refined as additional responsive and/or privileged documents are identified.⁴⁰ Ultimately, you may reach a point where the model indicates that very few responsive documents remain, and elect to cease reviewing at that point, with the remaining documents deemed non-responsive.

If it isn’t obvious from this description, let’s be clear: Few of us will ever develop the knowledge to design such programs. We will need assistance from experts—discovery vendors or counsel who specialize in electronic discovery. It is important, however, to have at least a basic understanding of the available options so that you can identify a cost-effective and defensible review protocol. It is further necessary that you understand the review protocol well enough to provide oversight to ensure that the protocol used to sort documents is producing reasonable results and is defensible should a dispute arise.

Reasonable steps parties can take to deal with privileged information collected during discovery

Each of us has an obligation to protect attorney-client and work product materials.⁴¹ However, when we claim privilege and do not produce those documents during discovery, we are required by the Rules to identify and describe the documents withheld—the well-known privilege log.⁴² The process of manually reviewing all responsive documents and creating the privilege log often contributes substantially to the cost of discovery.⁴³ One way to limit this cost is the “quick peek” approach: Parties enter into a clawback agreement coupled with a Rule 502 order, and agree that they will produce all documents, including privileged information, which the producing party can “claw back” when the privilege nature becomes apparent. Rule 502 will then protect the party from a claim of waiver in the current case and any subsequent federal or state proceeding.⁴⁴ The problem with this approach is that once the opponent has seen the privileged communication, they possess and can exploit the information it contains, even though they must return the documents. For this reason, this approach is rarely used.

Even if you are conducting a privilege review and withholding privileged documents, a Rule 502(d) agreement and order is crucial to minimize the risks of inadvertent disclosure and having to make the difficult argument to retrieve privileged documents.⁴⁵ The parties can agree that any inadvertently produced privileged material will be returned without argument and that Rule 502(d) will apply to prevent that disclosure from being considered a waiver of the privilege. To avoid further disputes, the agreement should specify how and in what timeframe the privileged material will be returned, and the procedure for disputing the claimed privilege.

Another method to limit privilege review costs is to use technology to sort out privileged material. The names of attorneys and keywords typifying legal advice can be used and a list with brief descriptors can be automatically generated. Counsel for both parties can agree to a Rule 502(d) clawback order and that certain documents on the log selected by the opponent as questionable will be manually reviewed and additional explanation of privilege provided. This procedure will save costs, but some hard-to-identify privileged documents are likely to be produced, subject to clawback.

Even when all documents being produced will be subject to manual review, modest agreements between counsel can limit some costs of the privilege log. Counsel can agree to grouping of privileged documents by type with general descriptions. If opposing counsel decides that the information provided may be a basis to contest some of those privilege assertions, they can request a detailed description of certain documents. Counsel can agree to waive the requirement of logging communications with trial counsel or eliminate documents created before or after a certain date from the privilege log requirements. These agreements can demonstrate a cooperative attitude and save discovery costs. Whatever the plan for dealing with privileged material in discovery, the client should be fully informed of the risks and costs of viable alternatives and consent to the procedure that will be used.

Enhanced manual review procedure can reduce cost

Regardless of the degree of machine document sorting, there will be some form of manual review, at the least to identify documents for your own use at depositions or trial. The expenses of review will escalate the more times documents have to be manually reviewed. If possible, manually review all documents once for both production and your own use. Do your best to understand all of the electronic information that may be relevant to any party. Review that material for production, attorney-client privilege, and your own use all at once.

A well-trained review team will be efficient and produce the best results. Provide the team with complete instructions, including a written review protocol describing the legal issues, the relevant documents, privileged information types, confidentiality issues, if any, and coding instructions.⁴⁶ For more cost effective and thoughtful review, emails can be de-duplicated so the endless string to multiple people doesn’t get reviewed numerous times. Email threading can be used to ensure that all emails in a single conversation are reviewed together. Finally, emails can be grouped by subject matter to allow more thoughtful review. An attorney with authority to make decisions should be available to supervise the review team and make decisions as questions arise. The methodology used for review should be recorded and decisions made on important points should be noted so that any later challenge to the procedure can be fully answered.

Careful review of electronic information before production can reduce costs and prevent embarrassing mistakes

Hopefully, the form of production has long since been agreed upon and there is no risk of arguments over form once the documents are produced. By Rule, electronic documents are to be produced in the form in which they are ordinarily maintained or in a form that is reasonably useable.⁴⁷ The Federal Rules provide that the requesting party is to specify the form of production.⁴⁸ There are generally four possible forms of production: paper, native, PDF, or TIFF with attached load (metadata) files. Paper may be entirely appropriate where all pertinent information will be shown on the paper and there is no need to electronically manage the documents. Native files can be easy to produce but very difficult to manage. It is difficult to redact native files, document identification of native files through Bates numbers is not practical, and native files cannot be branded with confidentiality designations. However, more types of documents, such as spreadsheets and diagrams, may only be effectively used in native form. The PDF format is limited, because documents in that format are difficult to electronically sort without metadata. TIFF files with relevant metadata in associated load files are considered reasonably useable and generally appropriate for document production.⁴⁹

Before sending the production out the door, check to make sure it is what you want to send. Nothing creates more problems, for example, than to mistakenly send the privilege files or to send only a portion of the production files. As the responsible attorney, you should do a final check of the production files to make sure it is what you wish to produce. As your opponent may check your production, you can do the same with electronic programs to ensure the production is complete. Are there likely custodians with no or few documents in the production? Are there emails exchanged between the parties that are present in your opponent’s production but absent from yours? Are there few documents associated with key concepts or words? Are there documents identified as privileged that involve third parties who break the privilege? These checks will help ensure your peace of mind about the integrity of the produced documents.

Conclusion

You may be bothered by the technical aspects of electronic document collection and production, and this article only touches the technical surface. Take heart. We are not required to be competent to handle the technical aspects of this subject and perfection is never demanded. We must understand the legal issues in our case, as well as the available methods to locate, preserve, and produce electronic documents. We should ensure that we have competent assistance to manage the technical aspects of the work and then direct the work be done in an honest and reasonable manner. There are always glitches in any extensive electronic document production. Perfection is not expected but reason and honesty are required.⁵⁰ Serious problems arise when the lawyer supervising the work fails to supervise; fails to recognize or deal with the glitches that arise; or sends the wrong message to the client or associates regarding honesty.

All of us and our clients will benefit from recognizing that we advocate for our clients on the facts as they exist. We can do this effectively while cooperating with our opponents to produce to them and obtain from them the facts that do exist, including those present in electronically stored information. 

KATE JOHNSON is a commercial litigator and partner in Dorsey’s Minneapolis office, focusing primarily on construction litigation. She represents owners, contractors, and sub-contractors in cases involving construction defect, delay, and scope claims. 

Notes

¹ KPMG, Managing Electronic Data for Litigation and Regulatory Readiness, kpmg.com/content/dam/kpmg/pdf/2016/02/litigation-survey-2016.pdf, 6.

² Id. at 7.

³ ABA Model Rule 1.1, cmt.

⁴ Brady, Legal Malpractice and e-Discovery, 32 Law, Man. Prof. Conduct 484 at 3 (Aug. 2016).

⁵ Minn. Rules of Prof. Cond. 1.1.

⁶ See Brady, supra note 4 at 4.

⁷ Fed. R. Civ. Pro. 37(e).

⁸ E.g., Drive Time Car Sales Co., LLC v. Pettigrew, 2019 U.S. Dist. LEXIS 66339 (S.D. Ohio 2019).

⁹ GN Netcom v. Plantronics, 2017 U.S. Dist. LEXIS 205433 (D. Del. 2017); see Paisley Park Ent., Inc. v. Boxill, 330 F.R.D. 226 (D. Minn. 2019).

¹⁰ Darmer v. State Farm Fire & Cas. Co., 2019 U.S. Dist. LEXIS 185862, *3, (D. Minn., 2019). Fed. R. Civ. Pro. 26(g) (response must be correct to the best of the person’s knowledge after a reasonable inquiry).

¹¹ Brady, supra note 4 at 7-8.

¹² Candor Toward Tribunals, 33 Law. Man. Prof. Conduct 368 (June 2017).

¹³ Brady, supra note 4 at 2.

¹⁴ See The Sedona Conference, Principles, Third Edition, 2017 at 108.

¹⁵ Fed. R. Civ. Pro. 26(a)(3)(C).

¹⁶ United States v. Boston Sci. Corp., 2018 U.S. Dist. LEXIS 185273, *2, (D. Minn., 2019); Rio Tinto PLC v. Vale S.A., 306 F.R.D. 125, 127 (S.D.N.Y. 2015); Griffith, Processing Electronically Stored Information, Practical Law/Litigation 22 (Oct./Nov. 2017).

¹⁷ Sedona Principles, supra note 14 at 69-84.

¹⁸ Id. 118-124.

¹⁹ Sedona Principles, supra note 14 at 127, but see Rio Tinto, supra note 16 at 127.

²⁰ See Minn. R. Civ. P. 26.02(b); Fed. R. Civ. P. 26(b)(1).

²¹ See The Sedona Conference, Commentary on Legal Holds, 11 Sedona Conf. J. 265 (2010); see also, Fed. R. Civ. Pro. 37(e).

²² Paisley Park, supra note 9 at 4; Fed. R. Civ. Pro. 3(e), 2015 note.

²³ Sedona Principles, supra note 14 at 93.

²⁴ Ettari, Reasonable Anticipation of Litigation, The Journal Litigation (June/July 2017) at 30-31.

²⁵ Id. at 31-32.

²⁶ Sedona Principles, supra, note 14 at 101-102; see also, Todler et al., The Sedona Conference Jumpstart Outline (2016). 

²⁷ For a more complete list of questions about the client’s electronic systems see The Sedona Conference Jumpstart Outline (March 2016). Courts regard the Sedona publications as authoritative on electronic document preservation and production. Matrix Partners VIII, LLP v. Natural Research Recover, Inc., 2009 WL 10677430 at 5 n. 3 (E.D. Tex, 2009).

²⁸ EPAC Techs., Inc. v. HarperCollins Christian Publ’g, Inc., 2018 U.S. Dist. LEXIS 53360 (M.D. Term 2019) at 11.

²⁹ Sedona Principles, supra note 14 at 104-105.

³⁰ Fed. R. Civ. Pro. 26(f)(2), 26(f)(3)(c).

³¹ Paisley Park, supra note 9 at 8-9; see also Hinostroza v. Denny’s Inc., 2018 U.S. Dist. LEXIS 109602 (D. Nev. 2018).

³² Browder v. City of Albuquerque, 187 F. Supp. 3d 1288 (D. N. Mex. 2016).

³³ Id.

³⁴ Homid and Sherno, E-Discovery in Employment Cases, The Journal/Litigation, 26, 29 (Feb./March 2017).

³⁵ See Jones v. Breman High School Dist. 288, 2010 WL 2106648 (N.D. Ill 2016).

³⁶ Sedona Principles, supra note 14 at 168.

³⁷ Da Silva Moore v. Publicis Groupe, 287 F.R.D.182, 190 (S.D.N.Y. 2012).

³⁸ City of Rockford v. Mallinckrodt ARD, Inc., 326 F.R.D. 489 (N.D. Ill.).

³⁹ Hyles v. N.Y. City, 2016 U.S. Dist. LEXIS 100390 (S.D.N.Y. 2016).

⁴⁰ Rio Tinto supra note 16 at 128.

⁴¹ Minn. R. of Prof. Cond. 1.6.

⁴² Fed. R. Civ. Pro. 26(b)(5).

⁴³ Sedona Principles, supra note 14 at 147.

⁴⁴ Fed. R. of Evid. 502(d); see Sedona Principles, supra note 14 at 148-152.

⁴⁵ Ranger Constr. Indus. V. Allied World Nat’l Assn. Co., 2019 U.S. Dist. LEXIS 18617 (S.D. FL. 2019). In the absence of a Rule 502(d) agreement, a party is subject to a multipart reasonableness test to determine if a court will order the return of inadvertently produced documents. Bombardier Rec. Prods. v. Arctic Cat Inc., 2017 U.S. Dist. LEXIS 192528 (Minn. 2017).

⁴⁶ Bloomberg BNA, Rainey & Gaunt, Best Practices for Supervising, U.S. Law Week (7/7/2015); see also Thomson Reuters, Document Review Quality Control, Practical Law Litigation.

⁴⁷ Sedona Principles, supra note 14 at 169.

⁴⁸ Fed. R. Civ. Pro. 34(b)(1)(C).

⁴⁹ PDF (Adobe Portable Document); TIFF (Tagged Image File Format); Metadata (Numerous forms of data are attached to each document. For example, they tell a computer how to display the document and what changes have been made to a document. Some metadata is very useable and relevant but much of it is not significant to most litigation).

⁵⁰ Sedona Principles, supra note 14 at 169-175.