Document Production: Tomorrow Is Here

Litigators have seen massive technological changes occur during the past two decades. Perhaps some of the greatest of these changes have taken place in the time-honored discovery tradition of document production. From the Bates stamp to electronic coding, production of documents in 2003 bears little resemblance to that of the 1980s and 1990s. A look back at the productions of these two decades reveals that technology has changed forever the way lawyers produce their clients' documents.

Back to the Future?

The 1980s saw a massive increase in the sheer amount of paper produced by litigants. As document productions grew in proportion, litigators looked for new ways to produce them in a timely and efficient manner.

Michael Shuster, a partner at New York's White & Case and the head of the firm's commercial litigation practice, received a bracing introduction to document productions 1980s style. “My first document production out of law school took place in the Philippines,” said Shuster. “A legal assistant and I flew there to review documents involving a Philippine construction company and a political-risk insurance policy for activities in the Middle East. The documents had been transported from Iraq, Libya, Jordan and Kuwait. At the end of every day, we were covered in black ink all the way to our elbows.”

Shuster is not alone in having harrowing experiences in old-fashioned productions. These pretrial traumas continued into the 1990s. Mark Dahl, a senior legal assistant at Washington's Crowell & Moring, recalls a document production in Puerto Rico. “We were in a small structure on the roof of a building in San Juan,” he said. “It was over 100 degrees. There was no air-conditioning, but there were plenty of cobwebs and bugs. The only good thing was that I guess the heat made us get through the documents faster.”

And speaking of hot, document reviewers occasionally faced other perils. In September 1995, The National Law Journal reported that documents produced by the U.S. Department of Energy, in litigation involving the Rocky Flats nuclear weapons plant near Denver, turned out themselves to be radioactive.

For most associates, though, document production was a drearier experience that took place in less exotic locations. Throughout the 80s and well into the 90s, associates would travel to warehouse-like rooms in distant cities, where they would sit at long tables, along with 20 or more other associates, and review page after page of documents for attorney-client privilege and work-product protection. Sometimes they would endure this drudgery for weeks on end.

Kirk Watkins, a partner in the Atlanta office of Womble Carlyle Sandridge & Rice, experienced the trials of 1980s productions ' in one case in Kuwait. However, the present-day experiences of Watkins' wife, Leah Fressell Watkins, a paralegal at Atlanta's Powell, Goldstein, Frazer & Murphy, illustrate just how far things have come. Leah Watkins is conducting a document production involving multiple courts and various client sites ' all from the comfort of one office. “Our technology department worked with the client's technology department in order to allow us 'direct access' from our firm's intranet site to the client's intranet through a series of passwords,” Leah Watkins said. She noted that being able to review documents by computer has both practical and legal benefits. “By simply clicking a mouse,” she said, “we can now be certain of getting every document [in its] current version, and have it in hand without the necessity of visiting numerous offices, incurring the travel expense and time lag in receiving copies of the documents, not to mention the high confidence level of having every piece of paper that could possibly be relevant on one particular issue.”

A New Era

Watkins' experience is becoming more the rule than the exception. Today's document productions often have no documents ' lawyers review images on a computer screen. With imaging software, today's documents are scanned, never to be passed around by multiple lawyers and paralegals in an old warehouse.

Software applications such as Summation and Concordance allow documents to be marked and coded electronically instead of tagged with tape flags on endless pieces of paper. Computers number the documents rather than humans hand-stamping them. As White & Case's Shuster said, “One of the biggest changes since the 80s is that a whole industry has sprung up to deal with document productions.” This industry provides services enabling lawyers to produce documents without ever touching them. Vendors such as Ikon and Quorum provide what they call “turnkey solutions,” where one vendor handles everything from digitizing the documents to numbering them electronically.

Paper Is Not Dead

Despite what most consider progress, the move to electronic production is not universally championed. Houston attorney Susan Cone Kilgore, who was a litigator for the Federal Deposit Insurance Corp. from 1990 until 2002, was not immune from the old document-production experience, noting, “We had one production where we had to work in an old basement of a building across from the White House.”

However, Kilgore is not on the trial-technology bandwagon. “I don't like the limitations the technology puts on document productions, and I have yet to find a presentation system in the courtroom that I like,” Kilgore said. “I have received scanned documents with the bottoms chopped off or some other critical piece of information from the original lost, either inadvertently or perhaps on purpose. Of course, this happens with hard copies, too, but it is easier to see and, therefore, easier to address.”

Recalling a case she tried in the Middle District of Florida, Kilgore said, “It was a breach-of-contract case, and the other side's documents didn't look like ours. The produced documents included faxes where there was confusion about the order of the pages and where limiting conditions of the contracts should have appeared.” “Working with the originals was really important for two reasons. First, from a production standpoint, we wanted to see the originals to look for alterations,” Kilgore said, “and once we were in the courtroom, we could show the jury the actual, physical, differences between the documents. I am confident that this bit of reality made a difference in the outcome of the case. Technology hampers you once you get the documents into the courtroom. Documents rarely fit in the screen in a legible matter. In order to make it readable, you see one-third of the document if you're lucky.”

Kilgore feels that a lawyer loses something with the jury when the documents are electronically produced. “I like to touch the document, and feel it,” she said, noting that she wants the jury to have the same experience. “If I'm trying to drive home the point that a contract made no mention of liability, I want to be able to hold that document before the witness and to the jury and say, 'Where do you see any mention of liability in this document?' If I don't have the original, I've lost the dramatic effect.” However, Shuster sees it differently. “The old process was slow and cumbersome. When we used to go through the documents and tab them with tape flags, we even had to preserve the flags,” he said, adding, “Today's method of having ten associates in a room with laptops is just more time-efficient and cost-efficient than having people in remote locations going through boxes with sticky notes.'

As much as document productions have changed over the past two decades, there may be more to come. In a 2000 Boston College Law Review article, U.S. District Judge Shira Scheindlin of the Southern District of New York and her former law clerk, Jeffrey Rabkin of Los Angeles' Gibson, Dunn & Crutcher, noted that a litigant's data may not be discoverable. They wrote, “The difference between 'documents' and 'data' has practical ramifications because, in some cases, it may not be possible to require a litigant to provide the codes needed to use or 'translate' electronic documents.” Scheindlin S, Rabkin J Electronic Discovery in Federal Civil Litigation: Is Rule 34 Up to the Task, 41 B.C. L. Rev. 327, 362; 2000.

Scheindlin and Rabkin said that parties might object to producing the raw data and that Federal Rule of Civil Procedure 34 may not authorize such production requests. Among the reasons they cited was the risk that non-responsive, proprietary information might be contained in the code. However, getting the data in addition to the documents may be commonplace in the document production of the future. “In the 80s, nobody was asking opposing parties, 'What do you have on your server?'” said Peter Bensinger, a partner at Bartlit Beck Herman Palenchar & Scott, Chicago. Bensinger predicts there will be important changes in the form in which material is produced. “Pretty soon, you're not going to be able to get away with just producing flat TIFF images.”

Date Mining

Rather than merely producing images of each document, Bensinger predicts, lawyers will be engaging in some fairly extensive data mining. He believes that document productions will include not only the documents themselves, but also the data behind their creation, such as the formulas behind spreadsheets and data in companies' networks. “Historically, lawyers had nothing to do with databases,” Bensinger said. However, he said, they will soon. “When you get an image of a document, you're not getting all the information,” he said.

Bensinger noted that, in addition to documents, he requests the formulas used in the opposing party's spreadsheets. “When you're crossing an expert, you want to know the formula he used in developing his data,” Bensinger said. “You can't see the formula if you just have an image of the document. Having not only the documents, but the formulas behind them, gives a lawyer a tremendous advantage when cross-examining witnesses.”

In addition, the ability of various servers to communicate with each other has improved dramatically, with even faster, more in-depth communication to come. This ability to exchange massive amounts of data ' with merely a keystroke or a spoken word ' will invariably alter the way information is traded during discovery.

With data mining supplementing images of documents, the document production of 2023 may differ far more from the production of today than today's production differs from that of 1983. Bensinger predicts, “As much as things have changed, the big changes are still to come.”

David Horrigan is a reporter with The National Law Journal, an affiliate of Law Journal Newsletters.

Litigators have seen massive technological changes occur during the past two decades. Perhaps some of the greatest of these changes have taken place in the time-honored discovery tradition of document production. From the Bates stamp to electronic coding, production of documents in 2003 bears little resemblance to that of the 1980s and 1990s. A look back at the productions of these two decades reveals that technology has changed forever the way lawyers produce their clients' documents.

Back to the Future?

The 1980s saw a massive increase in the sheer amount of paper produced by litigants. As document productions grew in proportion, litigators looked for new ways to produce them in a timely and efficient manner.

Michael Shuster, a partner at New York's White & Case and the head of the firm's commercial litigation practice, received a bracing introduction to document productions 1980s style. “My first document production out of law school took place in the Philippines,” said Shuster. “A legal assistant and I flew there to review documents involving a Philippine construction company and a political-risk insurance policy for activities in the Middle East. The documents had been transported from Iraq, Libya, Jordan and Kuwait. At the end of every day, we were covered in black ink all the way to our elbows.”

Shuster is not alone in having harrowing experiences in old-fashioned productions. These pretrial traumas continued into the 1990s. Mark Dahl, a senior legal assistant at Washington's Crowell & Moring, recalls a document production in Puerto Rico. “We were in a small structure on the roof of a building in San Juan,” he said. “It was over 100 degrees. There was no air-conditioning, but there were plenty of cobwebs and bugs. The only good thing was that I guess the heat made us get through the documents faster.”

And speaking of hot, document reviewers occasionally faced other perils. In September 1995, The National Law Journal reported that documents produced by the U.S. Department of Energy, in litigation involving the Rocky Flats nuclear weapons plant near Denver, turned out themselves to be radioactive.

For most associates, though, document production was a drearier experience that took place in less exotic locations. Throughout the 80s and well into the 90s, associates would travel to warehouse-like rooms in distant cities, where they would sit at long tables, along with 20 or more other associates, and review page after page of documents for attorney-client privilege and work-product protection. Sometimes they would endure this drudgery for weeks on end.

Kirk Watkins, a partner in the Atlanta office of Womble Carlyle Sandridge & Rice, experienced the trials of 1980s productions ' in one case in Kuwait. However, the present-day experiences of Watkins' wife, Leah Fressell Watkins, a paralegal at Atlanta's Powell, Goldstein, Frazer & Murphy, illustrate just how far things have come. Leah Watkins is conducting a document production involving multiple courts and various client sites ' all from the comfort of one office. “Our technology department worked with the client's technology department in order to allow us 'direct access' from our firm's intranet site to the client's intranet through a series of passwords,” Leah Watkins said. She noted that being able to review documents by computer has both practical and legal benefits. “By simply clicking a mouse,” she said, “we can now be certain of getting every document [in its] current version, and have it in hand without the necessity of visiting numerous offices, incurring the travel expense and time lag in receiving copies of the documents, not to mention the high confidence level of having every piece of paper that could possibly be relevant on one particular issue.”

A New Era

Watkins' experience is becoming more the rule than the exception. Today's document productions often have no documents ' lawyers review images on a computer screen. With imaging software, today's documents are scanned, never to be passed around by multiple lawyers and paralegals in an old warehouse.

Software applications such as Summation and Concordance allow documents to be marked and coded electronically instead of tagged with tape flags on endless pieces of paper. Computers number the documents rather than humans hand-stamping them. As White & Case's Shuster said, “One of the biggest changes since the 80s is that a whole industry has sprung up to deal with document productions.” This industry provides services enabling lawyers to produce documents without ever touching them. Vendors such as Ikon and Quorum provide what they call “turnkey solutions,” where one vendor handles everything from digitizing the documents to numbering them electronically.

Paper Is Not Dead

Despite what most consider progress, the move to electronic production is not universally championed. Houston attorney Susan Cone Kilgore, who was a litigator for the Federal Deposit Insurance Corp. from 1990 until 2002, was not immune from the old document-production experience, noting, “We had one production where we had to work in an old basement of a building across from the White House.”

However, Kilgore is not on the trial-technology bandwagon. “I don't like the limitations the technology puts on document productions, and I have yet to find a presentation system in the courtroom that I like,” Kilgore said. “I have received scanned documents with the bottoms chopped off or some other critical piece of information from the original lost, either inadvertently or perhaps on purpose. Of course, this happens with hard copies, too, but it is easier to see and, therefore, easier to address.”

Recalling a case she tried in the Middle District of Florida, Kilgore said, “It was a breach-of-contract case, and the other side's documents didn't look like ours. The produced documents included faxes where there was confusion about the order of the pages and where limiting conditions of the contracts should have appeared.” “Working with the originals was really important for two reasons. First, from a production standpoint, we wanted to see the originals to look for alterations,” Kilgore said, “and once we were in the courtroom, we could show the jury the actual, physical, differences between the documents. I am confident that this bit of reality made a difference in the outcome of the case. Technology hampers you once you get the documents into the courtroom. Documents rarely fit in the screen in a legible matter. In order to make it readable, you see one-third of the document if you're lucky.”

Kilgore feels that a lawyer loses something with the jury when the documents are electronically produced. “I like to touch the document, and feel it,” she said, noting that she wants the jury to have the same experience. “If I'm trying to drive home the point that a contract made no mention of liability, I want to be able to hold that document before the witness and to the jury and say, 'Where do you see any mention of liability in this document?' If I don't have the original, I've lost the dramatic effect.” However, Shuster sees it differently. “The old process was slow and cumbersome. When we used to go through the documents and tab them with tape flags, we even had to preserve the flags,” he said, adding, “Today's method of having ten associates in a room with laptops is just more time-efficient and cost-efficient than having people in remote locations going through boxes with sticky notes.'

As much as document productions have changed over the past two decades, there may be more to come. In a 2000 Boston College Law Review article, U.S. District Judge Shira Scheindlin of the Southern District of New York and her former law clerk, Jeffrey Rabkin of Los Angeles' Gibson, Dunn & Crutcher, noted that a litigant's data may not be discoverable. They wrote, “The difference between 'documents' and 'data' has practical ramifications because, in some cases, it may not be possible to require a litigant to provide the codes needed to use or 'translate' electronic documents.” Scheindlin S, Rabkin J Electronic Discovery in Federal Civil Litigation: Is Rule 34 Up to the Task, 41 B.C. L. Rev. 327, 362; 2000.

Scheindlin and Rabkin said that parties might object to producing the raw data and that Federal Rule of Civil Procedure 34 may not authorize such production requests. Among the reasons they cited was the risk that non-responsive, proprietary information might be contained in the code. However, getting the data in addition to the documents may be commonplace in the document production of the future. “In the 80s, nobody was asking opposing parties, 'What do you have on your server?'” said Peter Bensinger, a partner at Bartlit Beck Herman Palenchar & Scott, Chicago. Bensinger predicts there will be important changes in the form in which material is produced. “Pretty soon, you're not going to be able to get away with just producing flat TIFF images.”

Date Mining

Rather than merely producing images of each document, Bensinger predicts, lawyers will be engaging in some fairly extensive data mining. He believes that document productions will include not only the documents themselves, but also the data behind their creation, such as the formulas behind spreadsheets and data in companies' networks. “Historically, lawyers had nothing to do with databases,” Bensinger said. However, he said, they will soon. “When you get an image of a document, you're not getting all the information,” he said.

Bensinger noted that, in addition to documents, he requests the formulas used in the opposing party's spreadsheets. “When you're crossing an expert, you want to know the formula he used in developing his data,” Bensinger said. “You can't see the formula if you just have an image of the document. Having not only the documents, but the formulas behind them, gives a lawyer a tremendous advantage when cross-examining witnesses.”

In addition, the ability of various servers to communicate with each other has improved dramatically, with even faster, more in-depth communication to come. This ability to exchange massive amounts of data ' with merely a keystroke or a spoken word ' will invariably alter the way information is traded during discovery.

With data mining supplementing images of documents, the document production of 2023 may differ far more from the production of today than today's production differs from that of 1983. Bensinger predicts, “As much as things have changed, the big changes are still to come.”

David Horrigan is a reporter with The National Law Journal, an affiliate of Law Journal Newsletters.