Check out the top 5 ediscovery case summaries for January, 2014.
Friday, January 24, 2014
Jason Atchley : eDiscovery : TOP 5 EDISCOVERY CASE SUMMARIES – JANUARY 2014
DEFENDANT DOES NOT PROVIDE COMPELLING ARGUMENT FOR NOT PROVIDING NATIVE FORMAT PRODUCTION
LACKLUSTER RETENTION POLICY LEADS TO SPOLIATION SANCTIONS
ON APPEAL, FEDERAL CIRCUIT SLASHES EDISCOVERY COSTS IN TAXATION AWARD
DEFENDANT DOE NOT DELIVER CORRECT FORMAT, MUST PRODUCE ESI WITH METADATA
COURT OF APPEALS DISMISSES PLAINTIFFS FOR FAILURE TO PRESERVE AND INCREASES DEFENDANT’S TAXABLE COSTS
Jason Atchley : eDiscovery : THE POLLS ARE OPEN FOR THE NATIONAL LAW JOURNAL’S “BEST OF 2014” SURVEY
From January 10th to February 10th the National Law Journal (NLJ) will be accepting votes for its annual reader rankings survey. It’s designed to be a forum for end-users to rate the products and services they use in litigation.
Please take the time to vote today. You don’t need to subscribe to the National Law Journal to vote.
I can tell you from personal experience that getting aggregate feedback from the people who actually purchase and use legal technology solutions is not an easy task. Moreover, the by-product will be extremely valuable to your colleagues who are just now evaluating how to approach litigation with modern technology.
It is incredibly humbling that Kroll Ontrack has been nominated in the following categories:
- Best end-to-end ediscovery provider
- Best predictive coding ediscovery solution
- Best data and technology management ediscovery provider
- Best data recovery solution provider
- Best managed document review services
- Best managed ediscovery & litigation support service provider
- Best online review platform
- Best case management software
To our wonderful readers with the time and experience required to cast a ballot, THANK YOU! The survey is long but you do not have to answer every question. Once again, here is the link to the NLJ survey. Polls are open until February 10th.
Jason Atchley
Jason Atchley
Jason Atchley : eDiscovery : THE FIVE BIGGEST EDISCOVERY ISSUES TO WATCH IN 2014
1. CONVERGING TOOLS AND PROCESSES BLUR LINES BETWEEN EARLY DATA ASSESSMENT (EDA) AND REVIEW
Does an organization really need two separate tools for EDA and review? For over 15 years, organizations have been adopting litigation technologies a la carte (e.g., a review tool) that solve maybe one piece of a much larger ediscovery puzzle. Only now are practitioners finally stepping back to see the forest for the trees: this cycle of one-off adoption has bred a lot of inefficiency. Every time electronically stored information (ESI) is exported, processed, and ingested into a different tool downstream, time and money is lost. If one tool empowered legal teams to filter, test and review in one place, many of these inefficiencies could be reduced. With an eye toward repeatability and long-term project management, expect industry leaders in 2014 to critically reexamine what is—and, perhaps more importantly, what is not—really necessary to react to ediscovery.
2. THE LACK OF LEGAL AVENUES TO SHIFT EDISCOVERY COSTS WILL BECOME UNAVOIDABLE
One of the biggest concerns ediscovery experts voiced in 2013 was that there are no well-paved paths for seeking ediscovery costs in court. In 2013, the Fourth and Federal Circuit joined the Race Tires Americacourt in reasoning that 28 U.S.C. § 1940(4) only applies to ediscovery functions that can be construed as “exemplification” or “making copies”—thereby excluding the bulk of ediscovery costs. At the same time, the rules espoused in Zubulake III and found in Federal Rule 26(b)(2)(B) are conditioned on a finding of some level of data inaccessibility, which, quite frankly, is becoming less of a problem than the gobs and gobs of accessible data increasingly wreaking havoc on producing parties. In 2014, expect more legal professionals to take issue with this rigid cost-shifting framework. Given the emphasis on increased proportionality radiating from the current federal rulemaking efforts, courts will probably become more creative and comfortable using less clear forms of authority and clever ESI protocols to rein in disproportionate discovery.
3. SEARCH LAW WILL MOVE FORWARD
One issue left in the wake of Da Silva Moore is whether a party may obtain discovery of training decisions made during the machine learning stage of a predictive coding case. The court in In re Biomet tackled this question for the first time in 2013, reasoning that a party’s request for the identification of coding decisions made on training documents was unfounded because parties are not permitted discovery of irrelevant and potentially privileged documents. Touching on the permissible bounds of the work product doctrine as it applies to the most talked about next-gen review tool, this exemplifies the type of intricate search dispute that will likely be opinion worthy in 2014. Because district courts from independent circuits so often look to each other for support in ediscovery opinions, it wouldn’t be surprising to see this hot-button issue revisited multiple times in the new year.
4. PROPOSED AMENDMENTS TO THE FEDERAL RULES SHAKE UP PRESERVATION AND SANCTIONS STANDARDS
There is undeniable inconsistency across the nation with regard to the culpability standards required for different levels of spoliation sanctions. Proposed Federal Rule 37(e)—one of a handful of ediscovery amendments under public commentary—essentially replaces this inconsistency by requiring a showing of substantial prejudice plus willfulness or bad faith to allot serious sanctions. This is a higher standard than those imposed in many circuits and notably forecloses courts from issuing serious sanctions where gross negligence or negligence resulted in the loss of potentially relevant ESI. Despite the fact that the Committee on Rules of Practice and Procedure wants to wrap up this process by early 2015, many question whether any of these amendments will actually change anything, while others wonder whether the threshold for serious sanctions as espoused by Proposed Rule 37(e) has been set too high.
5. PREDICTIVE CODING WILL BECOME A QUESTION OF WHEN, NOT IF
Predictive coding has been around since 2010. It was first endorsed for use in the ‘right cases’ in Da Silva Moore and was later ordered to be used sua sponte in EOHRB. In 2013, courts went even further by: (1) accepting—over the opposition’s objection—a party’s decision to apply predictive coding after culling the majority of a data set with keyword search (In re Biomet), and (2) opining that disclosure of training documents was not required (In re Biomet). Outside of the judicial arena, the notion of curbing costs with modern technology has spurred amendments to the ABA Model Rules, proposed amendments to many provisions of the Federal Rules, and amendments to several state rules of civil procedure (e.g., Minnesota). If one looks to recent commentary about how to really get to the nub of proportionate discovery, predictive coding is increasingly being offered as a potential answer. While 2014 probably won’t be the year this technology goes mainstream, massive change has probably become inevitable.
Jason Atchley
Jason Atchley
Jason Atchley : eDiscovery : NAVIGATING CROSS-BORDER RULES AND REGULATIONS: EDISCOVERY IN APAC
Ediscovery is expanding in all directions at an incredible pace. According to Gartner’s Magic Quadrant, the global ediscovery market will experience year-over-year growth of about 15 percent as it jumps from $1.7 billion in 2013 to $2.9 billion by 2017. Notably, Gartner expects that the rising prevalence of ediscovery issues in international markets will drive the U.S. share of the market down from 81 percent in 2012 to less than 70 percent by 2017. As we progress into an era where trading and outsourcing in emerging foreign markets has become the norm, familiarity and awareness of international ediscovery issues is exceedingly important for today’s professional.
Of the many regions experiencing significant growth in the ediscovery market, the Asia-Pacific (APAC) region is one of the most pronounced. The rules with regard to ediscovery are also highly varied in this region: while countries like Hong Kong and Singapore are quickly developing and implementingediscovery laws that align more closely with American practice, other countries such as China and South Korea lack a framework governing ediscovery—or lack procedural rules altogether.
As ediscovery projects continue to permeate country-borders, this blog aims to offer practical tips for navigating multinational disputes in regions like APAC. If you’re interested in learning more about the nuances and developments in ediscovery in Asia, be sure to check out the upcoming webinar, “Ediscovery in Asia: What U.S. Legal Professionals Need to Know,” on January 22, presented by Kroll Ontrack and EDJ.
Jason Atchley
Jason Atchley
Jason Atchley : eDiscovery : EDISCOVERY YEAR(S) IN REVIEW: THE BIGGER PICTURE FROM 2008—2013
If you reviewed Kroll Ontrack’s annual press release, attended our “year in review” webinar, and read ourwrap-up about my recent Google+ Hangout with numerous ediscovery experts, you probably have a pretty good handle on ediscovery in 2013.
While there is significant value in knowing the latest trends in ediscovery case law, I’m reminded of one of my favorite law school professors who always stressed that I try to see the forest for the trees. In other words, the cases observed this year are most valuable when taken in context of opinions from years past to discern trends and changes in the rapidly-evolving world of electronic discovery.
Over the past six years, ediscovery has changed a lot, and case law reflects some of those changes. Let’s take a quick look at some of the trends from 2008 to present:
- Sanction disputes remain (relatively) constant as preservation and spoliation standards remain in flux– from 2008 to 2013, opinions about sanctions have, on average, accounted for over 20 percent of the cases summarized by Kroll Ontrack. Cases discussing preservation and spoliation—the two topics most frequently related to sanctions—have seen a significant jump over the past two years. These are tricky subjects, and numerous courts—most recently and notably in Sekisui Am. Corp. v. Hart—tend to apply standards that vary by the facts of the case and the judge. As courts continue to interpret common law and apply varied analyses with regard to preservation, spoliation, and sanctions, this number will likely remain somewhat constant. Although the proposed amendments to the Federal Rules of Civil Procedure aim to provide more clarity with regard to spoliation, public support for this change is anything but uniform and we could still be years away from actually amending the Rules.
- Cases discussing production have tailed off – the number of cases focusing on production disputes peaked in 2009, where the topic accounted for 41 percent of Kroll Ontrack’s case summaries. Since then, that number has declined fairly steadily, with a slight uptick in 2013. The heavy number of production disputes from five years ago likely stemmed the rising challenges producing additional mediums in big data. The post-2009 decline was likely a product of savvier practitioners and judges meeting those challenges head-on.
- Procedural Disputes expand – opinions focusing on search methodologies saw the most notable increase in 2012, where they accounted for a larger majority of the cases summarized. As new technologies like predictive coding rose to prominence in 2012, the courts showed a heightened interest in the finer details of search methodologies to determine whether they were reasonable. In 2013, many of these questions were resolved under the framework of a proportionality analysis, which might prove more popular as proposed amendments make greater reference to this bedrock discovery principle.
- Cost Concerns rise and stay steady – cases discussing ediscovery costs truly rose to prominence in 2010, and cases such as Race Tires Am., Inc. v. Hoosier Racing Tire Corp. typified one side of the lingering debate about which costs related to ediscovery were recoverable. While courts remain relatively split over whether ediscovery is the modern equivalent of “exemplification” or “making copies” under 28 U.S.C. § 1920 (4), this subject will likely receive greater attention from the judiciary as litigants try to make sense of the existing standards. In fact, many peers in my recent Google+ Hangout believe this topic should receive greater attention as the existing channels to recover costs are far too limited.
As we look ahead to the future of ediscovery, understanding where we are and where we’re going is tremendously important to successfully navigating the pitfalls of unstructured data, rising litigation costs, and a litany of other concerns unique to this field of practice. If you’re still looking for more “year in review” content with some forward-looking discussion, be sure to catch my most recent ESI report podcastfeaturing Phil Favro.
Jason Atchley
Jason Atchley
Jason Atchley : MY (GOOGLE) HANGOUT WITH THE EDISCOVERY EXPERTS
What happens when seven of the smartest, most articulate ediscovery professionals come together for an hour talk about—quite frankly—whatever they want?
Just yesterday Josh Gilliland, Samir Mathur, Barry Murphy, Ralph Losey, George Socha, and David Horrigan joined my esteemed co-moderator Phil Favro and myself —virtually—for a Google+ Hangout on the current state of ediscovery. The discussion was loosely framed on three topics: case law, predictive coding, and FRCP amendments, and the perspectives shared (as you may expect from this forward-thinking group) were anything but canned.
Topic One: Case Law – This no-nonsense panel wasted little time cutting to the bone with an important and seldom-raised question: Just how much weight does a trial decision from Judge Scheindlin, the “grandmother of ediscovery,” really pull?
On one hand, practitioners and other courts are leveraging cases like Sekisui to start thinking about how to handle issues like spoliation, but as another panelist pointed out, the principles of stare decisis fully apply—moreover, Scheindlin often restricts her holdings to her court room, as no one judge controls preservation.
“Are new rules the answer?” pressed another expert. Preservation law has existed for around 400 years, so maybe the answer doesn’t lie in creating a new framework, but in using the tools we have today more effectively.
In a statement that was shared by most, one lawyer noted that “[Preservation has] always been about reasonable efforts and it always will be”—and what’s reasonable in one jurisdiction will differ from what’s reasonable in another. The bottom line hasn’t changed: these are fact-based determinations, and courts will find a way to sanction people who intentionally delete evidence.
On the issue of whether or not new rules would help, one member of the group concluded this topic by noting that “[W]e’ve been dealing with sanctions since Roman times, and that rules alone are probably not the end-all, be-all solution.”
Topic Two: Predictive Coding – Where do we stand right now in the adoption of this technology, and what will 2014 look like? Is this a mainstream technology? Will it ever be?
Fairly universally, the panel agreed with the notion that predictive coding has yet not totally taken off. “Even if X% of clients have used it, they aren’t using it in all of their cases because not all cases are right for this technology. Moreover, it has yet to be embraced by smaller firms,” as one panelist noted.
But at the very same time, another panelist fired back, “you’d be foolish” to not use it in the mega cases. Now that we have judicial approval—notably more than we ever had for keyword searching—he expects the discussion about predictive coding to mature, and the more interesting prospective discussions will be about the appropriate methodologies required to successfully deploy this software.
Another panelist argued that we’re going to see more opacity—yes, the opposite of clarity or clearness—in using this technology in 2014. There are ramifications tethered to agreeing to share testing and seed sets, and litigants will begin to carefully examine whether this is the right direction for using these solutions.
Most professionals agreed with the statement that lawyers are at the “tip of the tail on the dog” with regard to predicting coding technology. However, as noted by one attorney, as this technology continues to become less costly, and integrated into more review solutions, its usage should trickle down to the smaller firms.
Topic Three: Potential Amendments to the Federal Rules of Civil Procedure – Before wrapping things up, the group analyzed potential FRCP amendments currently on the table for public comment until early next year, specifically changes to FRCP 26 and 37.
To get the ball rolling, one participant opined that the renewed interest being injected into the 26(f) meet and confer conference obligation—“the lynchpin of successful discovery”—is a step in the right direction. Another countered, however, “there is only so much you can do to force people to get together and cooperate early.” This point was further echoed across the panel: there must be also be a parallel culture shift in how lawyers approach cooperation. Whether this will actually happen is an entirely different question.
While there was fairly universal agreement that the potential changes to the Federal Rules were positive additions to ediscovery law, especially with regard to bringing proportionality clearly into parent Rule 26, there was some hesitancy as to just how “game-changing” these rules will be. Addressing proposed rule 37, one expert noted that the culpability triggers defined by this rule will probably not significantly alter the current spoliation analysis.
On the whole, most participants agreed that the vehicles for shifting ediscovery costs are too limited. Section 1920 (4), which allows prevailing parties to recoup fees for “exemplification” and “making copies,” must be reworked in one way or another, as it’s the only place to currently hang one’s hat. Concluding the discussion, one expert stated it’s hard to stretch a statute, which has been around for over 100 years, to accommodate requests for costs associated with increasingly necessary ediscovery processes.
Jason Atchley
Jason Atchley
Jason Atchley : 2013 CASE LAW: “BACK TO BASICS” APPROACH GAVE US SOMETHING TO CHEW ON
2013 for ediscovery “was a very good year.” The courts’ unified message was simple (showing a renewed interest proportionality and cooperation), clear (attorneys in 2013 must know ediscovery), and even a bit provocative (see Sekisui). Considering that a bold and active judiciary is absolutely necessary to bring these elusive principles to life, I’m not even mad that the judiciary may have been listening to Ol’ Blue Eyesbefore Thanksgiving.
Attorneys are finally realizing that palpable value lies in fostering cooperation and proportionality by chasing carrots like reduced motion practice and less “discovery about discovery.” At the very same time, however, we’ve seen courts return to tried and true sticks like 26(g) as a vehicle for sanctions, all while making sense of the spoliation rulemaking quagmire playing out at the federal level.
Overall, Kroll Ontrack summarized more than sixty significant ediscovery opinions. Here are the topics those opinions focused on, by percentage:
- 28% of case revolved around Preservation and Spoliation of ESI, including when the duty to preserve is triggered
- 23% of cases had to do with Production of ESI for discovery disputes and the methods used
- 18% of cases address Sanctions for spoliation, production disputes and noncompliance with court orders
- 18% looked at Procedural Issues such as search protocols, cooperation and privilege
- 13% dealt with Costs such as shifting and taxation of costs
Notable ediscovery opinions from 2013 will prove most important as efforts to amend the Federal Rules of Civil Procedure progress through 2014. Many of these cases provided standards that either aligned with the proposed rules or further fueled the debate over the proposed language to key amendments.
For a deep dive in the 2013 in ediscovery, check out Kroll Ontrack’s annual press release and check back at this site to watch our recorded webinar
Jason Atchley
Jason Atchley
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