By: Jeff Dreiling
I write this article as our local and state officials begin to loosen restrictions and allow non-essential businesses to slowly start to reopen. As I reflect on the lessons I’ve learned during our unexpected time at home, I would like to send along my best wishes and sincere hope that you and your families remain as healthy and happy as possible.
Being forced to work from home will have a lasting impact on so many areas of our lives. We have been forced to slow things down: no travel, no important breakfast meetings to start our workday, no ending it with post dinner cocktails with out-of-town colleagues, no rushing home to get 4 hours of sleep so we can do it all again tomorrow. I know that I’ve learned a lot and look forward to carrying those lessons with me as we move forward. While many things are much more important than eDiscovery, there are still several important items I feel we should reflect on.
Let’s take a look at 3 eDiscovery lessons that will make us more prepared to handle cases from here on out. Even if I’m wrong, you’ll still be more informed and equipped to strategically leverage eDiscovery as the force of truth and fact that it is.
1. The number of sources containing discoverable info continues to grow.
It’s said that major events don’t so much change our culture as they simply reveal what was already there.
I believe that can also be applied to the sources of data we need to consider when requesting discovery. The truth is, the number of devices and accounts from which we can obtain valuable data has been rapidly growing for the past decade, and now, more than ever, we need to consider how we request that information.
Even the most disciplined and habitual amongst us has been forced to change the way we do our jobs. Microsoft Teams may have replaced your daily status meetings. Perhaps you too have had to replace the conference room white board with the Notes function on your iPad for brainstorming. I’m now doing things over email that were once reserved for face-to-face meetings. I’ve texted with more clients in the last 90 days than in the previous 5 years and don’t even get me started on Zoom. I’m sure we’ve all given a bit more thought to virtual backgrounds than we care to admit. My point is: everyone has had to make these changes and, in most cases, the changes we are forced to make create more of an audit trail, not less.
When I stop and think about all of the different pieces of technology that I use to do my job today as compared to 4 months ago, I realize that list has grown exponentially. I’m not the only one. We have all had to change the way we interact with technology to do our jobs and to stay connected and that presents new opportunities in the discovery process. Each of the new pieces of software we use creates opportunities for data to be collected and stored. Whether it be Microsoft Teams, text messaging, WhatsApp, Slack, or Zoom, each communication system we use has the potential to contain discoverable information.
2. Plaintiff attorneys must prepare for stronger proportionality arguments.
Ever since the Federal Rules of Civil Procedure (FRCP) were amended in 2015, defense arguments for proportionality (i.e. less discovery) have become standard. I recently came across a quote from Judge Pitman from the Southern District of New York that I found refreshingly honest. He said, “Given the amendments to the FRCP that became effective December 1, 2015, proportionality ‘has become the new black’ in discovery litigation, with parties invoking the objection with increasing frequency”. There are times this argument is made for very good reason. Other times, however, it is used to try and take advantage of a sympathetic Judge or an uninformed requesting party. Although a common argument, it is usually easily defeated by a specific and narrow scope of requests.
As a reminder, FRCP 26 makes clear the specific points of consideration that should be used when addressing proportionality. Specifically, Fed.R.Civ.P. 26(b)(1) lays out the following criteria for:
- The importance of the issues at stake in the action
- The amount in controversy
- The parties’ relative access to the relevant information
- The importance of the discovery in resolving the issues
- Whether the burden or expected expense of the proposed discovery outweighs its likely benefit
- The producing party’s resources
The last bullet point is one that we have seen used, with a “COVID-19 Twist”, the past couple of months. In most instances I have been involved with, the decision is made based on the other qualifying considerations and the producing party’s resources only become a viable issue if the other conditions have not been clearly argued. Remember, the requesting party bears the burden of establishing relevance, the objecting party bears the burden of establishing the discovery is not proportionate to the needs of the case.
3. The value of utilizing online databases has never been greater.
In March and April, we actually created more new online databases than the same months last year. While being careful not to confuse correlation with causation, I can’t help but think this increase was not coincidental. Many of our clients who thought online databases were only for their two or three biggest cases were quick to realize that they might be a good option for the smaller cases as well. No matter which online platform you prefer, or which provider you obtain the platform from, pricing should be proportionate to the size (Gigabytes) of the case. This means the costs for the online database should be directly tied to the size of the data in your case making them potentially feasible for most, if not all of your cases.
The true value in online databases is that you can work from anywhere you have a good internet connection just as if you were sitting in your office. Most online databases also have collaboration tools, messaging, or in-platform communication options and various other features that allow you to make working from home almost as efficient as sitting next to your team. To say we have seen technology-forward firms make the transition to working from home more easily than “traditional” firms would be a huge understatement.