YOUR DOCUMENT PRODUCTION

Engaging in trench warfare over every inch of discovery you provide can be one of the most expensive and, as recent discovery sanction decisions demonstrate, dangerous gambits to take. Strategically and cost-wise, the better tack is to expansively produce all documents and other information that possibly relates to the issues in the case -- regardless of whether you think it may or may not have been precisely requested. The days of playing cat and mouse over discovery production are over.

With the size of document productions these days due to electronic documents, you only want to do one production if possible. Moreover, while you may have every reason to believe that your limiting interpretation of your opponent's request is reasonable, the risk of a court later finding that you withheld relevant documents is just not worth it.

Software programs that purport to help you winnow down the documents you need to produce to comply with discovery requests are getting heavily marketed of late. Relying on such programs is a risky practice and you should approach these programs with a high degree of skepticism. The only purpose of such expensive programs is to winnow down your production based upon criteria fed into the software, violating the above described expansive production rule. And until they create a program like "HAL" from the movie "2001," this is even more risky than having a horde of inexperienced lawyers making these decisions.

Rule of thumb: Don't be parsimonious in your document production. Produce more rather than less and demand a protective order with a good "clawback" provision for any privileged documents that might be accidentally produced. They are SOP these days. If you follow this approach, you will no longer need to pay for an army of lower level lawyers parsing through the documents with a microscope and making potentially case-threatening relevancy determinations that you don't know about until they blow up in your face. 

Stewart M. Weltman, a member of The Corporate Counselor's Board of Editors, is the principal in the Chicago-based Weltman Law Firm. He can be reached 312-606-8756 or sweltman@weltmanlawfirm.com.