An APA challenge is not an eDiscovery case. There is usually no party discovery at all. What there is instead is a record that has to be assembled, numbered, redacted, indexed and certified — and vendors who sell it as eDiscovery give themselves away.

Federal agency litigation has surged, and a great deal of it is Administrative Procedure Act challenges. The instinct is to treat that as eDiscovery volume. It is not.

Most APA challenges are decided on the administrative record rather than through party discovery. What they generate is record assembly, Bates numbering, redaction, privilege logging and an index — real work, different work.

Why the distinction is the whole article

An agency counsel reading a vendor who claims APA cases drive large-scale ESI processing will conclude, correctly, that the vendor has never done one. The tell is proposing a processing-and-hosting workflow for a matter whose central deliverable is a compiled, paginated, certified record and a joint appendix.

The work is closer to a production than to a collection. Everything turns on completeness, pagination and the index.

What record preparation actually involves

• Compiling what the decisionmaker had before it, in the order and structure counsel designates — scoping the record is a legal judgment and stays with counsel
• Deduplication that does not destroy provenance, because where a document sat in the agency’s files can matter
• Continuous pagination across the whole record, with a numbering convention fixed before the first volume
• Redaction of deliberative, personal and controlled material, marked and logged
• A privilege or withholdings log that reconciles to the redactions actually applied
• An index that matches the record page for page
• Certification support — assembling what counsel needs to certify completeness, which is not the same as certifying it
• A joint appendix built to the court’s own requirements, which vary by court and sometimes by judge

Pagination is where this fails

A record that gets supplemented twice — and they do — has to absorb new material without renumbering what has already been cited in briefs. If the numbering convention did not anticipate that, the choice is renumbering the record or bolting on a second sequence that nobody can cite cleanly.

That decision is made at the start, before anyone knows supplementation is coming. It is the single most consequential call in the project and it takes ten minutes to get right.

Courts have their own requirements

Some judges publish detailed instructions for compiling and filing the record and the joint appendix — the Court of International Trade, for instance, has published judge-specific guidance on joint appendix preparation. Those instructions govern, and they are more specific than anything a vendor’s house standard contains.

So the first question is not what format we use. It is what the court requires, and whether the judge has said anything further.

Where we fit

We do the assembly, numbering, redaction, logging, indexing and appendix build. Counsel decides what belongs in the record, makes the privilege and deliberative calls, and certifies. That division is the same one we run on privilege review and on FOIA work, and it is the correct one — the scope of an administrative record is a contested legal question, not a vendor decision.

What we do

Pro-Legal Services, Inc. handles administrative record preparation for agencies and the firms litigating against and for them — compilation to counsel’s structure, a pagination convention built to survive supplementation, redaction and withholdings logging, a page-accurate index, and a joint appendix built to the court’s requirements.

From Arlington, Virginia, minutes from the District. Small business, minority-owned, SAM registered, prime or subcontractor.

Related: litigation support for government agencies, bid protest redaction support, Court of Federal Claims litigation support, public records redaction, redaction log preparation, exhibit indexing services, defensible production services.

Pro-Legal Services, Inc. prepares records from Arlington, Virginia, for agencies and counsel in the District of Columbia, Maryland and Virginia and in federal courts nationwide.

Record due, and likely to be supplemented? Send us the court’s requirements and the volume. The numbering convention is the conversation to have before anything is compiled. Pro-Legal Services, Inc. · 1550 Wilson Blvd, Suite 250, Arlington, VA 22209 · 202-955-9400 · info@pro-legal.com