Closing the Expectation Gap With e-Discovery Technology

Despite Chief Justice Roberts' confidence, attorneys and judges are still unsure of the effects the FRCP e-discovery amendments will have on legal practices, since e-discovery still (in some legal circles) is a niche field, taking a back seat to traditional legal principles (aka, adversarial nature of gamesmanship between parties in high stakes litigation). Last year, 57% of judges surveyed had a favorable view of the FRCP effects, which stays consistent with this year's results.

Rule 26(b)(1)

According to Chief Justice Roberts, “Rule 26(b) (1) crystallizes the concept of reasonable limits on discovery through increased reliance on the common-sense concept of proportionality. The amended rule states that lawyers must size and shape their discovery requests to the requisites of a case. Specifically, the pretrial process must provide parties with efficient access to what is needed to prove a claim or defense, but eliminate unnecessary or wasteful discovery. The key here is careful and realistic assessment of actual need.”

How to Take Advantage of This Rule

Bennett Borden, Chief Data Scientist & Chair at IG Group, Drinker Biddle Reath LLP, comments that, “under the new Rule, disproportional discovery is never within the scope of discovery in the first place. If it isn't in the scope of discovery, then there is no need to preserve it. Astute lawyers will use this to greatly reduce the volume of data preserved and thus reduce the associated burden of doing so.”

Legal teams can leverage modified Rule 26(b)(1) and get the necessary information to make a persuasive argument to opposing counsel and the court for proportional, cost-conscious e-discovery parameters with data management software that allows users to rapidly determine the volume of data, file count, file types and their relative distribution in a data set before formulating a litigation strategy. Technology can also create a searchable index of electronically stored information (ESI) and metadata as it exists “in the wild,” then apply early case assessment tools to rapidly identify key documents, locate crucial information, and determine costs, before a single document is ever collected.

Rule 37(e)

According to Chief Justice Roberts, amendments to Rule 37(e) dictate that “the courts must first focus on whether the [lost ESI] can be restored or replaced through alternative discovery efforts. If not, the courts may order additional measures 'no greater than necessary' to cure the resulting prejudice. And if the loss of ESI is the result of one party's intent to deprive the other of the information's use in litigation, the court may impose prescribed sanctions, ranging from an adverse jury instruction to dismissal of the action or entry of a default judgement.”

How to Take Advantage of This Rule

Again, according to Borden, “under the amended Rule 37, the culpability of the party has no bearing other than in cases where the party destroyed information with the intent to deprive it from the other party. Instead, the entire analysis hinges on whether the loss of information prejudiced another party.”

Here, project management technology allows you to minimize risk of e-discovery sanctions under the newly revised Rule 37(e) by proving to the court that “reasonable steps” were taken. With these tools, legal teams can manage all e-discovery activities, including collection, processing, review and production, as well as providing visibility into all e-discovery tasks with documented audit trails and advanced reporting capabilities in case your process is contested in court.

e-Discovery Competency

Usually things get better with time, but surprisingly, compared with last year's report, judges feel that attorneys are less e-discovery competent. In 2015, 68% of judges “somewhat agreed” when asked if the typical attorney possesses the subject matter knowledge, both legal and technical, required to effectively counsel clients on e-discovery matters. This year, that number dropped by approximately 47%. And attorneys felt more strongly about the lack of e-discovery competency from their peers, with 90% of respondents somewhat or completely disagreeing with the above statement.

An interesting conundrum is presented by these results as judges and attorneys have starkly different results when asked why e-discovery problems occur. Judges cite “no or poor cooperation between the parties” as their overwhelmingly number one reason, with one judge in the survey adding that “the lack of cooperation is exacerbated by miscommunication between counsel and, often, a collective failure to view the pretrial process through the lens of Rule 1 and its emphasis on the 'just, speedy, and inexpensive' determination of every action.” On the other hand, attorneys feel that a lack of e-discovery education is the root of the problem, with one attorney stating: “The single biggest problem is still that lawyers don't know what they need to know. Litigators tend to be people with high confidence, and too often they think if they don't understand something, it must not be that important. They need to be sensitized to involve people with e-discovery expertise.”

These results create a chicken or the egg scenario: Are there e-discovery problems because the parties aren't educated on e-discovery issues, or does this lack of education add to the reason why there is poor cooperation between parties on e-discovery issues? Technology can solve problems on both fronts by leveling the playing field for those inexperienced in e-discovery, as well as fostering cooperation with other parties.

In this case, e-discovery technology can empower any attorney to build cooperation and communication by connecting everyone involved in the e-discovery process with a single platform, linking key stakeholders, such as Legal, IT, Records Management, and Compliance. Technology can also level the playing field when it comes to a lack of education and experience with e-discovery.

Emerging Technology Trends in 2016

No one would argue that business is conducted by alternative data sources. While e-mails may still be the biggest source of responsive data, other data types such as structured, mobile, and social media data will play a bigger role within e-discovery (for example, a recent study found that 60% of merger and acquisition transactions are closed by text message). From an e-discovery risk perspective, attorneys are most concerned with mobile data, and judges are split between multiple technology trends (mobile, social, cloud, and wearable technology).

Along with new data types, where those types originate adds a new e-discovery challenge as well. Data stored on mobile devices ( e.g. , text messages, social media information, call logs, etc.) represents a new category of potentially relevant evidence, which must be accounted for and, in most cases, preserved during e-discovery. However, unlike “traditional” ESI found on computer or server hard drives, mobile ESI brings up a new set of challenges ' from gaining immediate access to data, coping with privacy, and separating private and business related data. Based on the survey results, judges and attorneys both need work on defensibly collecting responsive mobile data.

With new data sources, there is a tug of war between business needs and legal and regulatory obligations, but regardless, the obligation to collect remains the same. As Antonio Rega, Director of Berkley Research Group, points out: “The essence of how to deal with these new media types is not really that different from the way we've handled media types in e-discovery all along, which is to identify data within an organization and then decide what to do with that data. Once there's an understanding of what exists, then you can plan collection strategies.”

These strategies should include a “fight fire with fire” approach: If new technology creates challenges, then use new technology to overcome those challenges.

In this case, e-discovery technology provides a focal point for an organization's diverse applications and data sources, enabling legal teams to streamline e-discovery activities by quickly and seamlessly collecting and processing new data types so that legal teams don't miss a beat.

Key Takeaways

FRCP e-Discovery Amendments

Judges and attorneys definitely have mixed feelings about the effectiveness of the new FRCP amendments. Of all the rule changes, both judges and attorneys agree that Rule 37(e) and Rule 26(b)(1) will have the biggest impact on e-discovery, but attorneys rank Rule 26(b)(1) as the biggest game-changer. Either way, e-discovery technology takes the mystery out of proportionality and reasonableness.

e-Discovery Competency

Attorney e-discovery competency is still an issue in the courtroom, but the perceived culprits vary: Judges blame a lack of cooperation between the parties, while attorneys say parties are not educated on e-discovery issues because of a general aversion and lack of experience toward e-discovery issues and technology. In any profession, knowing how to leverage the right tools for the job is a vital aspect of remaining competent.

Emerging Technology Trends In 2016

Judges and attorneys note that finding relevant data is still one of the main obstacles in e-discovery, as well as understanding new data sources that produce responsive information. When trying to predict the future of new data sources, 36% of judges are looking toward mobile data, while only 5% of attorneys view mobile as the data source of the future. However, both sides suggest leveraging technology and tools to overcome these obstacles, which can speed up the e-discovery process and lower costs.

Jim Gill is the content marketing manager at Exterro. He can be reached at [email protected].