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Practice Tip: Be Proactive in Document Production

By Kirby Griffis

In many kinds of litigation, document production is a dirty term. Even when done carefully, responsibly, and well by both sides, the process of producing documents (and, for the other side, the process of dealing with documents that have been produced) is tedious, thankless, and consumes a remarkable amount of resources. Things become much worse when the parties clash over what should be produced and how, and worse still when the party receiving the documents is more interested in using the discovery process to inflict pain or to generate a record for sanctions motion practice than he is in getting documents to help him prepare his case.

As a party producing documents, you can't change the way the other side will behave, but you can still set up your document production to make it much more likely that things will go well. Anticipate your document production needs when a case is filed, not when you first receive written discovery requests. If the litigation is on a brand-new subject for which no documents have previously been gathered, get started on the process. If it is serial or otherwise familiar litigation, consider what unique discovery might be required by this case, and look into it.

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