Canadian Lawyer

BY DERA J. NEVIN TECH SUPPORT How do I list electronic documents in production schedules? I documents? What is the best way to list e-mails and attachments? What if, during processing, an e-mail that looks like one document becomes more than one document (for example, it lists a logo or other graphic file independently)? Do I need to include the graphic in my list? How should I list documents that are redacted? I generally use a standard meth- s there a standard way to list electronic documents in an affidavit of documents or records or a similar list- ing of a party's producible PRODUCTION COUNSEL and leave no member of the family behind. Families can become split apart, leaving orphans when you use search terms or some other criteria resulting in a "hit list" to identify potentially relevant docu- ments; ensure all family elements are included in the items reviewed, including family members with no hits. During review, I review each PRIVILEGED od for developing the production list, which I will share in this arti- cle. My method is a set of rules designed for reviewing and producing electronic records, including e-mails, but applies also to digitized versions or copies of paper documents. The method addresses where the privilege and relevance calls relating to e-mails and their attachments may be different, so I can avoid the possibility of inconsistency in listing documents between the various sched- ules. In appropriate cases, I confirm the production rules with opposing counsel in advance of review, and may even consider including these rules in the discovery agreement so the parties can avoid inconsistencies in listing the same document. I organize review and production situations according to "family relationships." A family relationship is formed among two or more documents that have a con- nection. For example, an e-mail with ELECTRONIC a PowerPoint presentation attached is a "family" in which the e-mail is the "parent" document and the PowerPoint presentation is the "child. tionship also consists of an e-mail with no attachments but disaggregated infor- mation bits — usually graphics such as a logo. During processing, sometimes these graphics become related to the e-mail message as attachments even though they visually appear to be merged when displayed on screen or printed. I maintain the integrity of families " A family rela- SEARCH LIST privilege. The exception would be where the children are disaggregated graphical elements of an e-mail message (such as a logo and/or other image associated with the signature block). In this case, those items "follow on automatically" and carry the same relevance or privilege call as the parent document. However, I recommend productions e-mail and attachment for rele- vance and privilege independently, making a discrete call on each item. For example, if an e-mail has a Word and an Excel document as attachments, I evaluate the e-mail, Word document, and Excel docu- ment separately for relevance and in document review and production, particularly where the relationships between elements are important to understand the context of the docu- ments. Although review can occur on a document-by-document basis, I find it works best where family relationships are visible to the reviewer. I bring all family elements into the set for review, 18 N O VEMBER / D ECEMBER 2012 www.CANADIAN Lawyermag.com be made according to legal classifica- tion of the "parent" within the family. Generally, I do not disaggregate family items in disclosure absent consent of all parties. This method of production can become particularly important if docu- ments have been redacted in order to preserve privilege, or for some other reason, because redaction of a document (in whole or in part) can incline people to separate families and can affect how the documents are listed. I follow certain rules when redacting PRIVILEGED RELEVANCE LIST DOCUMENT RELATIONSHIP ELECTRONIC ELECTRONIC ELECTRONIC HIT LIST ADDRESS ELECTRONIC PRIVILEGED ELECTRONIC LIST E-MAIL ORGANIZE ORGANIZE E-MAIL FAMILY RELATIONSHIP SCHEDULES APPLICATION RELATIONSHIP ENCODING FAMILY DOCUMENT AFFIDAVIT EXCEL ENCODING ADDRESS E-MAIL ATTACHMENT COUNSEL SEARCH ADDRESS REVIEW ATTACHMENT RULES WORD INTEGRITY

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