The New Enforcement Manual: Document Productions –Part II

The last installment of this occasional series discussed document production procedures from the new SEC Enforcement Manual. Earlier installments considered the Wells process, cooperation and parallel proceedings.

Traditionally materials produced either voluntarily or pursuant to a subpoena were hard copy paper documents. Under the Manual however, the preference is for electronic production. If an electronic production is made, the material can be scanned collections, e-mail or native files. The Manual directs the staff not to take productions in other formats.

Electronic productions are to be organized by custodian and furnished to the staff along with a summary. That summary should describe the number of records, images, e-mails and attachments in the production. The description must contain sufficient detail to permit the staff to verify that the production is complete.

Any electronic production should be compatible with Concordance 8.2, which is the software used by the staff. The production can be delivered to the staff on a CD, DVD or a hard drive.

If a scanned collection is produced, the Manual specifies that it must contain four components: 1) an image file; 2) delimited text file; 3) optical character recognition text; and 4) option cross-reference file.

Finally, the preferred method for producing e-mail is to convert it into a central repository or database that is searchable with Concordance. The preferred format is delimited text with images and native attachments. Alternative formats that are acceptable are PST (Microsoft Office) and NSF (Lotus Notes).

While electronic productions are preferred, the Manual does provide that the “staff may allow a subpoenaed entity or individual to produce photocopies of the original documents …” The Manual goes on to provide guidelines for “acceptable productions” of copies. These include:

1) The copy must be identical to the original;

2) There must be an identifying notation on each page such as the initials of the person and it is to be followed by a number in a blank corner;

3) If the document contains a removable flag or post-it, a copy of the document with and without the flag or post should be produced;

4) In the case of multiple productions by the same source, it is suggested that a production date (month, date, year) be added; and

5) The producer must maintain the original of all copied documents.

Each of these guidelines should be followed when copies are produced.