Preservation and production protocol

Clause 6 asks the expert to establish what leaves their environment and who retains it, and Clause 7 asks for a record capable of being produced — and the facts or data considered by a testifying expert are discoverable under Federal Rule of Civil Procedure 26(b)(4) whatever form they take. Neither clause survives an engagement that was not set up for it on day one, which is what this preservation protocol is: a setup procedure, not a response plan.

Chapters Twenty and Twenty-One carry the reasoning. This is the operating procedure. Platform-specific export mechanics change too often to print, and are not reproduced here. It is free to use and to adapt, including in paid work, with no permission needed and no attribution required. Nothing on this page is legal advice, and whether any of it suits your engagement is a question for you and for retaining counsel.

Appendix F — Preservation and production protocol

Chapters Twenty and Twenty-One. This is the operating procedure.

Platform-specific export mechanics — where the function lives, what each provider's archive contains, how long it takes — are on the companion page, because they change and a printed description would mislead.

Day one

Create the engagement folder with six subfolders: log · exports · scripts · verification · decisions · intake.

Location determined by your protective-order analysis. For protected material, not a consumer cloud service.

Naming: date first, so the folder sorts chronologically without effort.

Open the log. Fill the header block from Appendix A.

Throughout

Log entries the same day. Under two minutes each.

Export on a cadence. Monthly, plus at each milestone — inventory complete, analysis complete, draft to counsel, report served, after deposition. Fifteen minutes each time.

File artifacts as they are generated, not in a sweep at the end. The habit is put the thing in the folder, which is a two-second act, rather than remember to preserve, which nobody does.

Suspend automatic deletion the moment a hold or a request is even discussed — including platform settings that purge history on a schedule. Innocent automatic deletion acquires a different character once a hold is in place.

The failure to avoid

Preserving once, thoroughly, at the end — and discovering that the earliest sessions, from the months when the opinion was actually being formed, have aged out.

The material you most need is the oldest and the most likely to have expired.

When a request arrives

It goes to counsel. Always. Without exception. Not by producing, not by declining, not by explaining, not by helpfully forwarding a file.

Then one email to counsel: what you have, where it is, roughly how much, and a request for instructions.

Producing

Structured, not narrated. The log as the log. Exports as generated. Scripts as files with inputs and outputs.

With a manifest — item by item, with dates and hashes where you have them.

With a short covering description — what each category is, over what period, generated how. Description, not argument.

Flag proactively to counsel: anything from another matter · anything under a different protective order · anything personal · anything you know to be embarrassing. Chapter Twenty-One: tell counsel about the bad entry before they find it.

The cross-matter problem

If you work across matters in one account, your export returns your whole account history interleaved, not this matter's material.

Prevent it on day one: separate accounts or workspaces per matter where permitted; failing that, sessions named with the matter identifier first, so they sort and filter without being opened.

If a request has arrived and you have neither, tell counsel immediately and in those terms. Do not sort it yourself under time pressure — disclosing another client's confidential material while assembling a production is a worse problem than the one you were solving.

What cannot be produced

Say so precisely, without defensiveness and without theory. The export returns sessions from [date] forward. Earlier sessions are not returned by the platform's export function.

You do not know why material is absent unless you do know. If the absence is your doing, say that plainly to counsel. It is not a good fact; it is a better fact than an evolving explanation.

At the end of the engagement

Most protective orders require return or destruction within a stated period, frequently with a certification. That obligation reaches every copy: the delivery, working copies, backups, derived files, and anything submitted to an external system.

Where preservation and disposal obligations conflict, you do not resolve it yourself. Raise it with counsel in writing, before the deadline, stating what you hold and what the two obligations appear to require. Then follow the instruction and log it.

* * *

Using it

Copy the page into whatever you already work in. A word processor, a spreadsheet, a notes application and a text file all satisfy the obligation equally, and the tool matters far less than whether the record was made at the time. What does not satisfy it is intending to write the record up later, because the value of a contemporaneous record is precisely that it was contemporaneous, and that property cannot be added afterwards.

This working paper is reproduced here in full. The other five, and what each contains, are on the working papers page. The full reasoning behind all of them is in the book.