Author: Jeff Dreiling
We consistently point out that navigating the world of eDiscovery can be seemingly burdensome and overwhelming for litigators. Typically, we provide basic education about technology as it applies to both you and Complete Legal. This blog will be a bit different as it is just for the litigators in the audience.
Have you ever wondered how to impress a judge when it comes to ESI/eDiscovery? Well, you’ve come to the right place. A recent panel discussion that featured Magistrate Judge Sallie Kim and District Judge Xavier Rodriguez attempted to give litigators a map of the 5 most important areas to be educated on before appearing in a hearing dealing with eDiscovery.
It should be noted that these areas are subject to some personal preference and are not universal, but it serves as a great starting point. So, without further ado, here are the 5 areas of eDiscovery competency that Judges Kim and Rodriguez feel are most important.
1. Understand all rules and guidelines relevant to your local court and judicial district.
While this sounds simple enough, both Judges noted that they regularly hear cases from parties who have not adapted, do not cite, and are not adhering to the new Federal Rules of Civil Procedure (FRCP) which have been in place since 2015.
Beyond the FRCP, many jurisdictions have employed local rules, eDiscovery preparedness checklists, or as in the case for the Western District of Missouri, both.
It is an attorney’s duty to ensure that everyone on their team, including the client, are fully versed in the current FRCP rules as well as any local district guidelines. By doing so, they will help their entire team avoid any penalties or fines over technical competency.
Before a Rule 16(b) conference takes place, each side has a duty to ensure they will be prepared to reveal specific case details. This includes being prepared to answer specific questions that a judge may ask during the hearing. Additionally, both sides should work out any disagreements and come prepared to make full disclosures before appearing before the judge.
2. Do not rely on rulings that predate December 2015.
Seeing how there were substantive changes made to the FRCP covering ESI and even further changes to preservation and collection in 2017, relying on rulings that predate December 2015, may not provide an effective example for your case.
This applies to many areas of eDiscovery case law but most specifically to rule 37 which covers the failure to make disclosures or to cooperate in Discovery and the sanctions that may be applied. Specifically, revisions to rule 37(e) have seemingly had the most impact since December of 2015. Rule 37(e) deals with failure to preserve ESI that is/was likely to contain discoverable information. If a judge finds that a party failed to preserve properly, they may order measures “no greater than necessary” to remedy the situation. Furthermore, “only upon finding that the party acted with intent to deprive another party of the information’s use in litigation” does it prescribe any legal remedy.
Basically, any party seeking to have their advisories sanctioned in a matter would be wise to ensure the case law they are siting was issued after December of 2015. Although we are seeing the new rule 37(e) applied differently across various courts and judges, it is safe to say that sanctions are less likely to be awarded for intentional spoliation in the past two years and is now a less effective argument.
Another important item to keep in mind for upcoming cases in 2018 and beyond are assurances of the security of the final repository/destination for confidential documents in a production. As data security and protecting confidentiality continue to grow in priority, the security of the database where the data will reside will become a more important issue to be able to discuss early in a case.
3. Understand Predictive Coding/Technology Assisted Review (TAR).
Predictive Coding/Technology Assisted Review (TAR) are firmly established in case law and rulings and are accepted for discovery productions. You would be hard pressed to identify a court that does not acknowledge that TAR is an effective use in discovery. A recent example is Judge Katherine Parker’s ruling in Winfield v. City of NY.
4. Know that challenges brought under eDiscovery rules incur a burden of proof.
If you are going to argue on behalf of your client that requests are not proportional, that the other side is withholding discovery or even that preservation has not taken place to the scope of your liking, be prepared to provide specific and factual examples.
If you are going to make an argument that your advisory is asking for discovery that is not proportional with the value of the case, be prepared to illustrate the cost, scope and time involved with the request. The more you can draw a clear picture of the tangible impact, the better the Judge will be able to understand your point. Specifically, Judge Kim expects to “see proof of the undue burden, if that’s the argument being presented”. If you are concerned that you have not received the type and production you have requested, take the time to understand all methodology and technology used by the other side before filing a motion to compel. Your time spent to understand the methodology of your opposing counsel will be well spent because not only is the burden of proof on you to demonstrate that their production(s) are incomplete, but you can use the specific information you find during this process to help prove your claims objectively.
If you find yourself in a position to defend the results of TAR, you would do well to provide some real-life statistics of the accuracy of TAR vs manual review, for example. Furthermore, why not defend your TAR generated results by sharing stats from the TAR analysis, completion statistics, and statistics from the validation QC procedure that most provide? Doing this upfront, the judges argue, will greatly reduce the need to have conflict about these issues.
5. Understand reasonable expectations of eDiscovery conferences.
Parties with the most reasonable expectations of eDiscovery conferences will be the most successful. Bottom line: educate your client.
Judge Kim sites examples of attorneys fighting for the sake of fighting and even taking on reasonable requests as fodder for battle. She would advise that usually the most reasonable requests are connected to the party who ultimately achieves a successful outcome. In other words, give on matters that don’t pose a substantial problem to you and/or your client and dig in on the important items. Obstructing for obstructions sake is a dangerous game to play in an area of the law that is quickly emerging and changing and where judges have wide lanes of interpretation in which they can steer things.
In fact, being reasonable and not motioning for the sake of motioning is a great way to win over the judge’s sympathy. Both judges agree on this one thing: the burden of educating the client as to which claims to pursue and how aggressively to pursue those claims lies squarely at the feet of the attorney. Teaching your clients what fights are worth fighting and showing them where the boundaries exist is an important part of being a successful litigator in the era of eDiscovery.