Who should bear the burden of showing prejudice (or a lack thereof) as a result of spoliation? The innocent party or the spoliating party? This vexing catch-22, which requires proof of what isn’t there, has not only lead to some of the most recognizable ediscovery case law in the country (See Zubulake; Pension Committee), but remains a major obstacle in the Advisory Committee’s path to amending the Federal Rules by 2015. To put it bluntly, if draft rule 37(e) went effective today, it would overrule Sekisuiand fly in the face of one of the most prominent ediscovery judges in the world’s stance on this very issue. Add fierce advocacy from large companies who are struggling to tread water in seas of ESI and one can see that while we’re almost three years into the rulemaking process, the finish line might not even be in sight.
November 7th marked the first of three public hearings aimed at proposed ediscovery amendments to the Federal Rules of Civil Procedure. Preliminary draft rules 26 and 37 stole the spotlight during the first public hearing in DC, and lobbyists minced words over what verbiage will appropriately curb over-preservation woes without going too far.
Let’s take a look at which amendments are still on the table, and where the arguments lie:
Proposed Rule 26 moves the proportionality factors of Rule 26(b)(2)(C) to the forefront of parent Rule 26(1). A party’s ability to “obtain discovery” is now clearly conditioned on proportionality, akin to relevancy or lack of privilege.
Plaintiff’s Point: Bringing the proportionality factors of 26(b)(2)(C) to 26(1) and using the word “proportional” in the rule goes too far. It sends a clear message to courts that they can deny discovery and will breed early motion practice. This will present a substantial obstacle to individual plaintiffs attempting to assert a claim, especially where extensive discovery may be necessary to vindicate their rights (e.g., employment law).
Counterpoint: These minor changes will not shift the balance of discovery because these factors already appear in the Federal Rules. Further, any added protection this new wording presumptively offers already exists in our rules in the form of certifying discovery disclosures under Rule 26(g).
Proposed Rule 37(e) removes the traditional verbiage of the ‘safe harbor’—instead if any party fails to preserve information in “anticipation or conduct of litigation,” a court may issue basic sanctions like further discovery, curative measures, or an order to pay expenses associated with the failure. However, if a court finds “substantial prejudice” plus bad faith or willfulness, more severe sanctions, like an adverse inference instruction, become available. These more potent sanctions are also unlocked where a court finds that that spoliation “irreparably deprived a party of any meaningful opportunity to present or defend against the claims in the litigation.” Courts are directed to consider five familiar factors (e.g,. proportionality, reasonableness) in making this determination.
Since ediscovery began, data has been collected, reviewed and produced individually, disconnected from any other ediscovery projects. Ironically, many ediscovery projects would benefit from leveraging other projects’ work and data collection. But when it comes to vetting the viability of emerging IT-Law solutions that promise to cut through the clutter, sometimes showing is better than telling. Check out the video clip below to see our friend Josh Gilliland’s (the legal mind behind bowtielaw.com) first impression of Ediscovery.com Manage:
Beyond proving that distance never stands in the way of two lawyers who want to geek out about ediscovery, the clip offers a great crash course into exactly what can be gained by a adopting a new, holistic approach to managing your entire ediscovery portfolio. Ediscovery.com Manage offers:
Transparency into the entire ediscovery portfolio—Ediscovery.com Manage provides full insight into granular project details like project and custodian data volumes
Real-time financials— organizations can explore, compare, and contrast ediscovery spend data across all cases in their portfolios
Structured and efficient collaboration—leveraging the power of social media, Ediscovery.com Manage centralizes all case communication in one project wall, providing instant access to project status and developments for the entire team
At this point, it is probably safe to assume that almost everyone has some concept of “big data” and thechallenges that data proliferation pose for ediscovery. This blog alone has discussed the big data explosion (in some form or another) at least a dozen times in the past year, and the message is relatively clear: Big data equals big headaches for unprepared practitioners.
…But what if I told you that practitioners are actually keeping up with the challenges posed by big data, that I have the evidence to back up those claims, and that now you do, too
Preposterous, I know, but I’m not making any of this up! Kroll Ontrack’s ediscovery.com Pulse offers hard data which shows that sophisticated ediscovery tools have allowed lawyers to keep pace with big data without sacrificing efficiency.
If you are new to ediscovery.com Pulse, here’s a quick primer: Kroll Ontrack gathered data from thousands of ediscovery projects from 2008 to the present and normalized that data to identify key trends in statistically relevant metrics. These trends offer benchmarks that can help practitioners better plan and execute their own ediscovery projects. In addition to these benchmarks, ediscovery.com Pulse offers industry-relevant articles, case summaries, an interactive ediscovery rules map, and a swarm of other features to help you keep your finger on the pulse of ediscovery.
With the launch of ediscovery.com, Kroll Ontrack released its first five benchmarks. Here are the findings:
Overall, the average number of both source gigabytes and produced gigabytes has declined.
The total number of gigabytes processed, reviewed and produced are decreasing, while the ratio of pages produced to pages reviewed remains steady at one to four.
The number of custodians collected per project in 2012 was half the number of custodians collected in 2008
Despite an increase in the number of sources of electronically stored information, about 65% of the data processed today is email—up from 50% in 2008.
Generally speaking, these metrics suggest that savvier professionals are combatting big data using more robust tools for filtering and analysis and experiencing great success. While Kroll Ontrack expects the percentage of source data that is email to keep increasing, the metrics also indicate that source gigabytes, produced gigabytes, and the total number of gigabytes from processing through production will keep decreasing while parties continue to produce about 25% of the documents loaded for review.
Finally, here’s the best part: Kroll Ontrack is just getting started with ediscovery.com Pulse. In the coming months, new benchmarks and features will be released, so stay tuned to theediscoveryblog.com for alerts and updates!
BigCo makes a point to save all of its information… somewhere… but if you’re looking for something in particular, they’d probably have to check with IT. This part of the story may sound pretty familiar, but the end might not be, and that’s because BigCo’s lawyers finally spoke up:
See “Big Data” is kind of like Miley Cyrus—it’s not going anywhere and apparently wrecking balls don’t help (hyperlink intentionally omitted). Like most things related to ediscovery project management, any successful solution must be saturated with forethought. For those of you willing to address the elephant in the room, here are some resources that show just how BIG our little big data problem has gotten, and what lawyers are doing to win the war:
This interpretation of Gartner’s 2013 Big Data survey results highlighted that while 64% of organizations have invested or plan to invest in Big Data in 2013, a paltry 8% have actually taken action
With particular respect to Big Data’s effects on ediscovery project management, ediscovery.com Pulse tracks a number of key benchmarks that legal professionals can compare their spend to. For example, in Kroll Ontrack’s projects, the average the number of custodians used as a collection source has declined from almost 70 in 2008 to just over 20 in 2012 (that’s over a two-fold reduction in 4 years (thanks technology!))—how many custodians did you collect from in your last project?
This blog post stresses the extraordinary impact unstructured data is having on litigation management, and what it means for lawyers struggling to cope with a corpus rich with this form of electronically stored information (ESI)
Perhaps the most critical point of time in an ediscovery matter is when the attorneys and litigation teams learn ediscovery will play a significant role in the case. Whether the red flag comes from a client’s dust-coated legacy email system, or from a haystack of Electronically Stored Information (ESI), three basic paths lie ahead: team up with a software or service provider, start identification and collection using in-firm or in-house resources, or just sit and think for a second.
For most cases and teams, the first two options are often (and should be) foreclosed due to a lack of knowledge about ediscovery, technology, vendor pricing, or the case at hand. Instead, they opt for choice three, until they know enough to make a well-informed decision.
While this may seem perfectly ordinary, when you revisit this ediscovery purgatory every single case, it also becomes painstakingly inefficient. One way around this “hurry-up and wait” game is to plan ahead – invest in technology and people that are “at the ready” should ediscovery ensure. To learn more, visit ediscovery.com to see how you can address these massive inefficiencies and transform your ediscovery practices from an art to a science.