In 1997, Judge D. Brooks Smith (W.D. PA) ordered the defendant in a class action to produce its counsel’s database of potentially responsive documents or suffer the consequences. One reason I sought that order was to cut through what would otherwise have been an untenably expensive process. Here are excerpts from the transcript, and the minute entry.
In short, Judge Smith agreed with me that, if all privileged and work product material could be redacted by simply omitting the subjective fields, there could be no real objection on those grounds. On the issue of burden, he gave the defendant five days to apprise him of the technical feasibility of producing the redacted database. He warned that if the defendant’s position was that producing the redacted database would be unduly burdensome, he would look unfavorably on any burdensomeness objections to producing any or all of the underlying documents.
Not surprisingly, the defendant elected to produce the database.
That database was invaluable. It helped us to narrow, prioritize, and specify our subsequent demands and to streamline our review. That led, in turn, to a settlement that could otherwise have been delayed for years at an astronomical cost to both sides.
There’s a great lesson here for ediscovery practice. Copying and producing the objective fields in a document database is easy. It’s also a great way to prioritize production and streamline review. It can be done at virtually no cost. The payback in terms of efficient and economical resolution would be immense.
In my view, counsel to the parties should agree at the outset to exchange the objective parts of their document databases in any case involving potentially huge productions. If they don’t agree, in many such cases the presiding judge should compel it.
I hope that the judiciary will see the merits of this protocol, as did Judge Smith.