A Few ESI Musts For 2016
March 03, 2016
Today’s post draws upon countless other recent articles and blogs and their respective predictions regarding, what’s in store for 2016 when it comes to e-discovery. I have tried to synthesize below, the steps that I believe every litigator should embrace for the coming year.
First, learn the new rules of civil procedure. The amended Federal Rules of Civil Procedure took effect in December 2015. As you all likely know by now, the new rules emphasize cooperation and proportionality. Specifically, the amendments require lawyers to better understand best practices for complying with and participating in their discovery obligations especially in the “E” world (i.e., electronic). With the change in Rules, it is inevitable that the federal decisions will begin to discuss and interpret these rules. We, as lawyers, need to follow and digest those decisions and interpretations and make certain that our client’s do what is necessary to comply with the new Rules and the decisional law on point.
Next, economize without jeopardizing defensibility. Any attorney responsible for a case that involves a large document collection/review/production component has inevitably heard complaints from clients about the cost of that component of litigation. There are, however, ways to defensibly contain costs (i.e., limiting custodians, utilizing key word searches, restricting time frames, utilizing contract attorneys for review, deduplication, deNYSTing, early cases assessment, data analytics…). However, if 2015 taught us anything it was that federal judges in our Circuit are embracing technology assisted review. Look no further than Magistrate Judge Peck’s decision in Rio Tinto PLC v. Vale S.A., (See Magistrate Judge Peck’s Recent Decision on the Use of Predictive Coding and the Cooperative Obligations Involved ) where he endorses this advancement as one of most efficient ways to efficiently review a large volume of data. Judge Peck commented “it is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it”…and “predictive coding [is] widely accepted for limiting e-discovery to relevant documents and effecting discovery of ESI without an undue burden.” Consider technology assisted review if you need to stay within your litigation budget on high volume cases.
Third, Stay Abreast of Advances in Technology. As mentioned in past blog posts (See blog Will New York Follow California’s Lead) a number of state ethics opinions and rules are now emphasizing the need for lawyers to possess competence in technology. Specifically, lawyers must demonstrate knowledge of techniques for handling electronically stored information in discovery. At least one federal court has cited California’s formal ethics opinion, suggesting attorneys “should be able to perform” various eDiscovery tasks, including preserving, identifying, collecting, and producing data (either on their own or with guidance of e-Discovery specialists or counsel). I suspect other courts are not far behind. So…no time like the present to get comfortable with e-discovery demands and technology.
Fourth, Understand How Your Corporate Client’s Employees Create and Store Data. I need look no further than my eleven year old to realize I don’t understand the latest devices and apps, or the vast amount of data he can create on those devices and apps. Now, imagine that volume potential on the corporate level! We can no longer take comfort that we collected data from servers, laptops, and mobile devices. Instead, your collection plan must identify any potentially relevant data that exists in atypical formats including, for example, social media (snapchap, facebook, Instagram, etc.), text messages, the cloud, ….Then, our plan must assess how to preserve this information and whether collection is necessary.
Fifth – and Definitely Not Finally — Everyone Should Think About Cyber-Security. With the Cybersecurity Information Sharing Act of 2015 signed into law in December, cybersecurity is no longer just an issue for one’s information technology team. We, as attorneys, must prioritize efforts to make sure our corporate clients are preparing for a potential data breach and informing their employees of steps to take that may safeguard their data.