Electronic Production Letter
Attachment 1
[COUNSEL]
|
Re: |
Proposed Acquisition of [TARGET CO.] by [ACQUIRING
CO.]
Electronic Production |
Dear [COUNSEL]:
I am writing to provide specific information regarding the Division's
requirements for receiving an electronic document production in response
to the Second Request issued in relation to the above transaction. Definition
& Instruction [O(4)] of the Second Request calls
for the electronic production of electronic documents and information.
This letter describes the basic features of an electronic production
that would satisfy the obligations of a Second Request, but it does
not constitute a modification of the Second Request. Further, this letter
does not address or endorse any search method counsel may use to identify
responsive electronic documents.
To ensure the efficient processing and review of any such electronic
production, Division legal, economic, and technical staff would like
to resolve the details prior to production, and preferably before [COMPANY]
or its vendor begins to gather and process responsive documents. It
is in both out interests to minimize the time and effort it takes to
produce and review the responsive materials. We will make ourselves
available so that we can resolve the details of the production promptly.
I have enclosed a questionnaire seeking basic information about your
client's electronic systems and back-up and archiving policies. Answers
in writing will greatly assist our discussion about electronic production
and speed up negotiations. Please supply answers as soon as possible.
A. Categories of Documents
We believe that any discussion regarding the details of an electronic
production should focus on six categories of documents: (1) hard-copy,
(2) e-mail and other electronic messages (e.g., instant messaging),
(3) other electronic documents, (4) shared resources, and
(5) databases[, and (6) company intranet(s)]. General
requirements for each category of document are outlined below. For information
regarding document-specific metadata and bibliographic information (identifying
information), please refer to the enclosed table.
1. Hard-Copy (or Paper) Documents
Hard-copy documents may be produced as image files with related searchable
OCR text and bibliographic information or in hard-copy form. Special
attention should be paid to ensure that hard-copy documents are produced
as they are kept, reflecting attachment relationships between documents
and information about the file folders within which the document is
found, consistent with Definition & Instruction [O(1)]
of the Second Request. In addition, multi-page documents must be produced
as a single document (i.e., properly unitized) and not as several single-page
documents.
2. E-mail and Other Electronic Messages
E-mail and other electronic messages (e.g., instant messages (IMs))
should be produced as image files with related searchable text and metadata
and bibliographic information. Each IM conversation should be produced
as one document. Depending on how the company's systems represent names
in e-mail messages or IMs, we may require a table of names or contact
lists from custodians.
3. Electronic Documents
Electronic documents include word-processing documents, spreadsheets,
presentations, and all other electronic documents not specifically discussed
elsewhere in this letter. Except as noted below, production of these
items should include image files with related searchable text and metadata
and bibliographic information (including filepath information).
- Spreadsheets
Spreadsheets should be produced in native format (e.g., as .XLS files)
[with only the first 5 pages imaged] with related
searchable text and metadata and bibliographic information.
- Presentations
Presentations should be produced in full slide image format along
with speaker notes, with any speaker notes following the full images
of the slides (to both ease review and reduce volume and costs of
production) with related searchable text and metadata and bibliographic
information. Presentations should also be produced in native format
(e.g., as .PPT files).
4. Shared Resources
Shared resources (e.g., shared drives or servers, shared filing cabinets)
may need to be searched because a custodian has access to them or because
they contain a specific category of responsive documents. They should
be produced as separate custodians, with a brief description of each
shared resource that includes a list of the employees who have access
to that shared resource. The documents in shared resources should otherwise
be produced as described in the rest of this letter.
5. Databases
We will need to discuss databases individually as soon as the Division
receives a list of those that are responsive to the Second Request.
This list should include a brief description of the contents/function
of the database, the database platform, and its size. This will be very
helpful in resolving what may need to be produced from any database.
No database should be produced without discussions with the Division's
staff.
[6. Company Intranet(s)
Company intranets are best discussed once you have identified
what is responsive on the intranets. Depending on volume, what is being
produced in the electronic production, and technical issues, it may
be appropriate to provide Division staff direct access via a secure
Internet connection, but significant technical challenges are often
involved.]
B. Technical and Other Requirements
The technical requirements for the electronic production are as follows:
1. Form and Manner of the Production
[For Summation Databases]
The production should be pursuant to the attached Summation Database
Specifications and should use the Summation database shell provided
by the Division. Production should be on a "rolling basis." Each submission
should be accompanied by an index of what is produced by custodian and
Bates number, along with information to confirm that the Division has
received everything that [COMPANY] intended to send.
For further details, see the attached Summation Database Submission
Requirements. Please note that a web-based production is not likely
to be possible due to technical issues related to the Department's firewall.
To minimize the amount of time required to load your submissions,
each submission should consist of as few Summation databases as possible.
Each database within each submission should be as large as practical
under the Summation Specifications and contain multiple custodians as
grouped by the Division. Within any submission, documents from an individual
custodian should all be in the same database. Submissions that contain
(a) Summation databases with documents from an individual custodian
spread across multiple databases or (b) Summation databases that
are relatively small will not be sufficient to comply with the Second
Request until they have either been replaced with complying Summation
databases or until the Division has finished merging the produced Summation
databases.
[For Summation Load Files]
The production should be pursuant to the attached Load File Request
Specifications and should be provided on a "rolling basis." Each submission
should be accompanied by an index of what is produced by custodian and
Bates number, along with information to confirm that the Division has
received everything that [COMPANY] intended to send.
Please note that a web-based production is not likely to be possible
due to technical issues related to the Department's firewall.
To minimize the amount of time required to load your submissions,
each production should be as large as practical under the Summation
Load File Submission Requirements and contain multiple custodians as
grouped by the Division. Documents from an individual custodian should
all be in the same submission. Subsequent submissions for custodians
that have already been produced should be grouped by custodian in the
same manner as the earlier submission. Productions that contain (a)
Summation load files with documents from an individual custodian spread
across multiple submissions; or (b) Summation load files that are relatively
small will not be sufficient to comply with the Second Request until
they have either been replaced with complying Summation load files or
until the Division has finished loading the produced Summation load
files. A subsequent submission should not include information produced
in a previous submission, unless requested by the Division.
2. Native Format Files
Native format files require that the Division has the associated software
and any necessary licenses to view the documents. Please notify the
Division's legal staff as soon as possible of any documents to be produced
from electronic documents in any native format to make sure that we
have the capability to open and view these documents. Password protection
should be removed from all files. Additionally, please provide a list
of all native formats that will be provided to the Division, and confirm
that the Division has the appropriate software and licenses.
3. Image and Text Files
Image files must be produced in the following manner:
- Images must be Group IV single-page TIFF files;
- There should be no spaces in file names and image files should be
named "<PageID>.TIF" (e.g., "DOJ-005.TIF");
- The TIFF images for a single document should be in one folder and
not split across multiple folders; and
- The number of image files in a folder should not exceed 5,000.
Text files must be produced in the following manner:
- Text files should include page breaks that correspond to the "pagination"
of the image files;
- There must be a carriage return and line feed in the first 80 characters
of each text file;
- For hard-copy documents the text files should be produced using
OCR techniques, but text should be extracted directly from electronic
documents; and
- All full text, whether produced using OCR techniques or extracted
from native files, should be loaded as OCR.
4. Privilege Designations
Items withheld or redacted pursuant to any assertion of privilege should
be so designated in the Summation Database, as indicated in the attached
Metadata and Bibliographic Information Table in the properties ("Prpties")
field. When any privileged document is withheld and is an attachment
to another or a larger "family" of documents, its absence due to privilege
should be designated accordingly in the "properties" field for its "parent"
document and all "sibling" attachments in the family.
5. Deduplication Methods
Deduplication should occur both vertically within each custodian and
horizontally across custodians. Vertical deduplication is crucial with
the production of electronic documents from back-up tapes. Horizontal
deduplication must be done in a manner to preserve and produce information
on blind copy (Bcc) recipients of e-mails and other custodians who have
the duplicates that will be eliminated from the production. Before doing
any deduplication, provide the Division with a written description of
the method used to deduplicate (including what information is compared
and what hash codes are used) and what is considered a duplicate, and
confirm that your approach is acceptable to the Division. However, there
can be no deduplication of "loose" electronic documents (e.g., presentation
slides located on the custodians C: drive) against e-mail attachment
versions of those same documents; the integrity of any produced e-mail
must be maintained except as limited by any claim of privilege. The
Division does not agree to any deduplication of hard-copy documents.
6. Hard-Copy/Native Format File Production Waiver
Except as otherwise agreed, if hard-copy and electronic documents are
produced electronically as agreed, [COMPANY] will not
have to produce hard-copy documents in actual hard-copy form or produce
electronic documents in native file format, unless specifically requested
by the Division in order to properly interpret the document or in response
to certain requests relating to unforeseen circumstances. However, please
note that some documents may more appropriately and efficiently be produced
in hard-copy (e.g., color documents, maps).
7. Physical Production
The Division can accept electronic production loaded onto hard drives,
CD-ROMs, or DVD-ROMs; however, it has been our experience that production
on hard drives minimizes costs and delay. Other methods may be possible,
but a direct feed or download is likely not a viable option for reasons
similar to those that preclude other web-based solutions. The method
chosen should be discussed with the Division's legal staff prior to
production.
8. Bates Numbering Identification
Bates numbering should use a consistent format across the entire production.
In general, Bates numbers should contain hyphens and no more than three
segments: for example, a company identifier, a middle segment (e.g.,
custodian identifier), and a sequence number of 6-8 digits (the number
of digits should be consistent across the entire production). Bates
numbers should not contain embedded spaces (" "), slashes ("/"), backslashes
("\"), or underscores ("_"). Native format files should also be assigned
a Bates number; if images have been produced with a native format file,
the beginning Bates number of the images should be the native format
file's Bates number.
9. Sample Submission Required Prior to Full Production
A sample submission must be provided to the Division for testing and
comment, before you "ramp up" production. To minimize the likelihood
of encountering problems during full production, the sample must be
representative of an actual production, including multiple types of
documents and documents with attachments. With databases (as opposed
to load files), the process of checking the sample can take as few as
three business days.
We invite you to schedule an initial meeting with Division staff to
discuss these issues as soon as possible after reviewing this letter.
We further request that any vendor you use participate in discussions
relating to [COMPANY]'s electronic production, along
with any of your firm's IT personnel who will be involved in the production.
In our experience, it is particularly important to hold discussions
about databases and back-up/archival systems early on, as such considerations
can save significant time and effort. Please feel free to contact me
at [PHONE #].
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[STAFF CONTACT]
Attorney
[SECTION]
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Questions about Electronic Systems and Back-up/Archiving Policies
Metadata and Bibliographic Information Table
Summation Database Specifications
Summation Database Submission Requirements
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