Fifty Ways To Minimize Errors In Document
Productions For Government Investigations
Dixie L. Johnson
Forget about perfection. Work toward a system
that makes mistakes easy to correct and keeps
them to a minimum.
Dixie L. Johnson
is a corporate partner resident in Fried Frank’s
Washington, D.C. office, where she co-heads
the Firm’s Securities Enforcement and Regulation practice group. She joined the Firm in 1986
and became a partner in 1993. Ms. Johnson focuses her practice on securities enforcement,
regulation, and disclosure. She has extensive experience representing clients in governmental and quasi-governmental investigations
involving the federal securities laws, most frequently United States Securities and Exchange
Commission enforcement matters. She counsels clients regarding their regulatory and disclosure obligations, assists clients in developing
policies and procedures to deter violations, and
conducts internal investigations. She can be
reached at dixie.johnson@friedfrank.com. This
article is based on a paper the author prepared
for the Securities Regulation Institute 2008. ©
Fried, Frank, Harris, Shriver & Jacobson LLP.
Shouldn’t the title of this article be, “How
to Avoid Errors in Document Productions?” Isn’t the first
error we should avoid setting our standards too low? We
should be able to be perfect in this area, shouldn’t we?
And why does this article focus on 50 ways to minimize
errors? Who can remember 50 things? More importantly,
why should I read an article about document production
written by a senior law firm partner? She probably hasn’t
handled a document production in years—particularly
one involving electronic communications, which is where
the problems are these days.
As it turns out, those who regularly produce or receive produced documents in government investigations
rarely expect perfection and are unreasonable when they
do. Errors happen, and the key is to be watchful for them,
admit them, and correct them as quickly as possible when
they occur. On the other hand, 50 is a random number.
We could probably list a hundred ways to minimize errors. Reducing the number to five or ten guiding principles, however, would avoid the level of detailed focus that
today’s document productions require. This brings us to
the senior partner issue: even senior partners these days
cannot afford to keep their heads above the details of a
document production. Hopefully, as we work through the
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50 ways to minimize errors, this article will demonstrate why.
THE PLAN AND THE END GAME • Here is
a plan for proceeding with document issues after
receiving the first indication of a government investigation. These are not required steps, or even
best practices—they reflect aspirational goals that
are unlikely to be possible in every instance. Some
law firms that routinely handle government investigations have institutionalized many of these steps
to minimize delays (and bills) when a new situation arises. Some in-house law departments have
addressed a few of these steps through prior investigations or through advance planning efforts
to minimize disruption in the event a government
investigation arises. But some of the steps cannot
be taken until the news arrives that a government
investigation is underway.
One last thing: keep the potential end game in
mind. Often, government investigations go away
once investigators have checked out the facts and
understand the issues. Sometimes, however, they
turn into legal proceedings or settlements, or parallel civil litigation ensues. If, for example, a company enters into a settlement with the United States
Securities and Exchange Commission (which is
often the context in which this author works), the
SEC routinely requires as a prerequisite to settlement a certification by a corporate official that the
search was reasonably designed and the document
production is complete. Planning for that from the
beginning can avoid many headaches and retraced
steps later on.
OK, now for the 50 ways to minimize errors
in document productions for government investigations. Although each one could be at least several
paragraphs, if not a full article, we have kept this in
list form, for easy reference. Email me if you want
more color.
August 2008
1. Form A Team
Form a document production team of in-house
and outside lawyers, paralegals, and IT personnel, and set up a communications plan involving
an email group, regular conference calls or another
structure tailored to the needs and preferences of
the individuals involved.
2. Brainstorm
Brainstorm within the team concerning the anticipated scope of the investigation, including potential witnesses, departments, and record repositories.
3. Privilege And Work Product
Evaluate attorney-client privilege and attorney
work product issues at the outset, and mark all documents accordingly.
4. Who’s Who
Prepare a “Who’s Who” list of potential document custodians, including assistants to custodians
as well as information technology (“IT”) personnel.
5. Gather Documents Immediately
Protecting senior officers requires gathering all
of their potentially responsive documents immediately; it doesn’t protect them to leave them off of
potential custodian lists.
6. Computer Imaging
Evaluate whether to image computers before
notifying individuals—including senior officers—
of the existence of an investigation.
7. Preserve Documents
Promptly direct known potential document
custodians to preserve documents, identifying for
them general categories of documents that must
be preserved and potential storage locations to secure.
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8. Think Production
Consider requiring production, not just retention, of documents at this time.
9. Keep Track Of Hold Notices
Create a chart using the “Who’s Who” list to
keep a record of document hold notices sent and
document collection communications with the custodians.
10. Coordinate With In-House Counsel
Develop a protocol between the law firm and
the in-house counsel regarding who will collect
documents and who will maintain and receive the
records tracking the document production.
11. Interview IT
Interview IT personnel promptly, using a
checklist and keeping notes, to begin to understand
document retention programs and potential document storage systems.
12. Map IT
Prepare a map of potential IT sources.
13. Intake Log
Create an intake log to record custodians, documents provided, and the dates on which documents
are provided.
14. Tracking System
Determine how to track incoming documents,
including whether to assign a document tracking
number to each document as it is gathered.
15. Vendor List
Create a list of seasoned, reliable vendors for
potential electronic discovery support.
16. Scrutinize The Subpoena
Scrutinize the subpoena for potential
breadth issues, focusing in particular on distinc-
tions between “all documents concerning” requests
and “documents sufficient to identify” requests.
17. Scope Of Subpoena
Discuss the scope of the subpoena with government investigators, providing specific justification/
information supporting why the subpoena should
be modified, and clearly document any modifications to the scope.
18. Re-interview IT
Interview IT personnel again, potentially including law firm IT personnel in the interviews,
to better understand how all potentially relevant
electronic communications systems and retention/
destruction practices work now and worked historically throughout the potentially relevant period.
19. Clarify Subpoena
Clarify whether the subpoena has been modified or prioritized—if not modified, all potentially
records must be preserved even if they have not
been prioritized for production.
20. Communication With Investigators
Document all communications with government investigators.
21. Chart Requests
Develop a master chart of all requests to track
modifications and documents produced to address
each request.
22. Request Collection
If the preservation notice did not actually request collection and production of documents,
send a second notice to do that.
23. Assign A List Leader
Assign a team member to be in charge of each
list, chart, and process to provide clarity and ease
of reporting during status discussions.