CBA Record March-April 2022

YOUNG L AWYERS S EC T I ON : COME TOGE THER

have more information. Before meeting and conferring with opposing counsel, carefully assess whether your client is a potential target of litiga tion in connection with the underlying dispute that gave rise to the subpoena. If your assessment is that your client has been issued a subpoena because it is a target of future litigation, be extremely careful about what information you reveal to opposing counsel regarding your client’s relationship to the underlying dispute and what respon sive material your client may or may not have. While you as a lawyer have ethical obligations to avoid providing opposing counsel with false or misleading informa tion, remember that your obligation at this stage is simply to commit to performing a reasonably diligent search under the circumstances and to produce responsive material, if the parties can agree what con stitutes a reasonably diligent search and a reasonable scope of production. If the parties cannot agree on an ESI protocol or the scope of the subpoena response, then motion practice over the subpoena will likely be necessary. Document Review & Production Tip 7: Develop a plan to review the docu

documents as responsive to help ensure that the scope of production is consistent and that nonresponsive documents are not inadvertently produced. Remain in regular contact with your client so your client can remain apprised about status and because you may have to contact your client about speci fi c docu ments so you can determine whether they are responsive. Generally, the review should be completed, and any questions resolved, at least 7 to 10 days before the production deadline. Th is will ensure that responsive documents are timely produced in accor dance with any court-ordered or agreed upon ESI protocols. If you are asserting privilege over any documents, you will also need time to create a privilege log to timely serve along with your document production.

ments and produce themby the deadline. Once you and the issuing party have agreed on a reasonable ESI protocol and the scope of the subpoena response, then implement the protocol, or have the vendor implement it, as soon as possible. Apply date range fi lters and search terms and review any reports of the results from the vendor; if everything looks reasonable, import the documents into the review platform. If, based on the ESI protocol, the amount of search hits will impose an undue burden on your client, work with opposing counsel to narrow the scope of the ESI protocol. Once this process is completed, deter mine the number of records to review in the document review platform, ensure that all associated metadata is captured by review ing document-level metadata information in the platform, and come up with a plan to review the documents and produce them. If you need to involve other people in the review given the number of records, now is the time. Th e reviewers should be in constant communication with one another about speci fi c questions involving speci fi c documents and general approaches to the review. In particular, reviewers must ensure that they are using the same criteria to tag

Jake Berger is an asso ciate at Tabet DiVito & Roths tein LLC, practicing primarily in the area of com mercial litigation. He is an Assistant Editor for the YLS Journal in the CBA Record.

CBA-CLE SEMINARS Miss the live version? Watch on demand at learn.chicagobar.org.

March 10 HowTo...OptimizeYour LinkedIn Pro fi le

March 24 Can Changes in School Discipline Divert the School-to-Prison Pipeline March 29 A Day in the Life of a Health LawAttorney

March 15 StartingYour Solo Practice: Succession Planning

March 15 InspiringWomen: Lessons in Leadership and Legacy Part 2

March 29 InspiringWomen: Lessons in Leadership and Legacy Part 4

March 17 HowTo… KeepTabs on How GoogleTracksYour Data

April 4 Advancing Social Justice Initiatives through Alternative Dispute Resolution

March 22 InspiringWomen: Lessons in Leadership and Legacy Part 3

March 22 CybersecurityAwareness, Fraud Prevention, and Incident Response

Plus over 200 on-demand seminars are available at learn.chicagobar.org Dates are subject to change.

CBA RECORD 29