Search Results for: "proportionality"

The Sedona Conference Commentary on Proportionality

As discussed in a blog back in January, 2017 is the year of proportionality.

The Sedona Conference Working Group on Electronic Document Retention & Production (WG1) recently released a new version of its publication, The Sedona Conference® Commentary on Proportionality in Electronic Discovery. This is the working group’s third iteration of this publication and is intended to address the 2015 amendments to the Federal Rules of Civil Procedure (FRCP).

This latest version focuses on the amendments to FRCP Rules 26 and 37, emphasizing the importance of proportionality in discovery. The authors note the balance of burden against benefit, stress that reasonableness depends heavily upon the facts within each case and underscore the importance of proactive communication between the parties throughout the litigation process. Additionally, the prominence of proportionality means that the amount in controversy is now only one of many factors that courts use to define the scope of discovery.

Specifically, the Sedona publication examines six proportionality principles:

  1. The burdens and costs of preserving relevant electronically stored information should be weighed against the potential value and uniqueness of the information when determining the appropriate scope of preservation.
  2. Discovery should focus on the needs of the case and generally be obtained from the most convenient, least burdensome and least expensive sources.
  3. Undue burden, expense or delay resulting from a party’s action or inaction should be weighed against that party.
  4. The application of proportionality should be based on information rather than speculation.
  5. Nonmonetary factors should be considered in the proportionality analysis.
  6. Technologies to reduce cost and burden should be considered in the proportionality analysis.

This updated document is another valuable resource for litigation teams dealing with the implications of the 2015 FRCP amendments. Commendations to the drafting team, and all those involved in the Sedona Conference!

2017: The Year of Proportionality

Editor’s note: this article originally appeared in Legaltech News.

Of the many changes that emerged from the 2015 FRCP amendments, none has spurred uncertainty within the legal community as much as Rule 26(b)(1) and its emphasis on proportionality. Judges and counsel alike have wrestled to apply the new rule, leaving 2016 case law rife with complex, fact-based interpretations. Even the Sedona Conference issued a publication addressing this issue in their recent publication, Commentary on Proportionality in Electronic Discovery (with public comments due Jan. 31, 2017). As we head into 2017, one conclusion is certain: Proportionality is here to stay.

What Is Proportionality?

Rule 26(b)(1) provides a list of factors, requiring parties to take into account “the amount in controversy,” “the parties’ resources” and “the importance of the issues at stake in the action,” among other factors. At its core, proportionality is about balance, ensuring that parties receive the information they need to plead their claims and argue their defenses, while curtailing expensive and time-consuming waste. While the concept of proportionality seems simple enough, applying it can be difficult for parties.

One mistake counsel make is to look at the factors involving monetary expenditures and stop their analysis there. However, as the Sedona Conference Publication indicates, this is just the beginning of the analysis. Courts care about the claims at issue, and they still have the same commitment to ensuring that parties will have the relevant information that they need. Relevance still matters, but it no longer stands alone. Courts are now more likely to say “no” to requests that are designed to burden parties and have relatively little value.

Another mistake that counsel make is to tell a judge that a discovery request is not proportional but then offer no suggestion as to how a request can be altered to make it so. If a discovery request is too broad, offer a suggestion as to how it can be narrowed, and be prepared to show the court documentation for costs involved. Where scope of discovery is in dispute, show the court a willingness to cooperate and be in contact with the opposing party when issues arise, rather than filing a motion to compel at the first sign of conflict. In 2017, more Rule 26(b)(1) opinions will have judges admonishing parties for failing to attempt to cooperate with each other. In fact, in the latter part of 2016, judges were increasingly reminding parties that the court is a last resort—not the first—when it comes to managing scope of discovery.

What We Have Learned in 2016

A blanket rule cannot be crafted to determine whether a request is proportional. In many of the Rule 26(b)(1) opinions in 2016, the courts took each specific discovery request and applied proportionality to the facts at hand. While judges might not be able to define proportionality, they recognize it when it is presented to them. When the proportionality analysis is so fact-specific, the job of counsel is to demonstrate to a judge how proportionality can work in the case. In a world buried in data, to be successful in gaining access to the most critical information, counsel must see proportionality as a tool and not a constraint.

In 2017, the expectation will be even higher for counsel to have adopted and be proficient with the new rules. Judges will have less and less patience for those who still apply the old “reasonably-calculated” language of Rule 26(b)(1). While in 2016, some courts themselves were still applying the old standard, in 2017, courts will expect parties to have fully acclimated themselves to the new rule. Courts are getting tired of paring down broad discovery requests and instead are sending the dispute back to the parties with orders to attempt to resolve the issue themselves.

Before the 2015 amendments took effect, the legal community was unsure whether the new emphasis on proportionality meant a material change in ediscovery. The opinions of 2016 have shown that judges have more than wrestled with proportionality; they have embraced it. Gone are the days in which parties can ask for everything and, frankly, strategic litigators know they do not want to be overwhelmed with all that useless data. 2017 will be the year of proportionality, and it is up to counsel to keep pace.

Cooperation & Proportionality – Essential Pieces to the Ediscovery Puzzle

Cooperation & Proportionality – Essential Pieces to the Ediscovery Puzzle

Like an unstoppable force meeting an immovable object, the rapid pace of technology and the staunchly conservative nature of the law could hardly be in greater conflict.

As the two forces continue to clash, the fallout can be seen in attorneys – doing what they believe is best – battling relentlessly while costs continue to soar. Caught in the middle of it all are the clients and courts, desperately searching for a resolution to the madness. In the midst of this chaos, two familiar concepts have emerged in an attempt to restore order – cooperation and proportionality.

Love it or hate it, electronic discovery is here to stay and parties must work together to curb the exorbitant (and increasing) costs involved in locating, reviewing and producing data in a lawsuit or regulatory matter. U.S. courts’ strong appetite for liberal discovery is tempered by the concept of proportionality, which recognizes that at some point ongoing discovery results in diminishing returns. Aside from its common law roots, proportionality is embodied in Federal Rule of Civil Procedure 1, stating that the rules should be “construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding,” as well as Rule 26, which permits courts to limit discovery if they determine the burden outweighs the benefit. As for proportionality’s counterpart, cooperation, its spirit can be found throughout legal opinions, scholarly commentary and model codes such as the American Bar Association’s Model Rules of Professional Conduct – particularly in Rules 3.2 and 3.4.1

With both of these concepts’ illustrious presence and history in litigation, one would think their application in ediscovery should be fairly straightforward. Yet court-ordered sanctions and costs related to ediscovery continue to rise at a startling pace.2 It is evident that although the basic framework to support proportionality and cooperation is in place, we still need to fill in the gaps. Thankfully, commentators and scholars from both the bench and bar, along with industry experts, have provided the missing pieces – we just need to put them together.3

Fear of the Unknown

In the ediscovery context, knowledge is power and ignorance is disabling. Unfortunately, the latter is far more common. No matter your professional background, the e-discovery process can be complex and daunting. Litigators who do not fully understand the process and intricacies are far more likely to make mistakes that can significantly prolong litigation and increase costs. Fear of the unknown and resulting defensiveness can be as (or more) problematic than being uneducated in this space. All attorneys naturally fear the fatal mistake of disclosing the proverbial “smoking gun” that sinks their client’s case.4 However, when discovery involves millions of pages of documents – as e-discovery commonly does – it is no wonder why costly production and spoliation disputes dominate e-discovery jurisprudence.

Thankfully, the solution is relatively simple and something attorneys are no stranger to – education. In the past few years, many organizations have been formed to encourage and help attorneys, clients and the judiciary to work together and better understand the nuts and bolts of ediscovery. For example, the Seventh Circuit’s Electronic Discovery Pilot Program’s Principles Relating to the Discovery of Electronically Stored Information has recognized the need for cooperation, proportionality and education “to reduce the rising burden and cost of discovery . . . brought on primarily by the use of electronically stored information (ESI) in today’s electronic world.”5 Important concepts from this effort include Principle 1.02, which states “[a]n attorney’s zealous representation of a client is not [emphasis added] compromised by conducting discovery in a cooperative matter” and also acknowledges that the “failure of counsel . . . to cooperate in facilitating and reasonably limiting discovery requests and responses raises litigation costs.” In addition, Principle 1.03 instructs that the application of the proportionality standard in discovery will be furthered by crafting discovery requests and responses that are “reasonably targeted, clear, and as specific as practicable.” Further, Principle 3.01 stresses the pressing need for education by calling for judges, attorneys and parties to “become familiar with the fundamentals of discovery of ESI,” and Principle 3.02 establishes a duty to pursue continuing education in this regard. According to the Phase One report from May 2010, “92 percent of the judges agreed that the Principles [set forth in the program] had a positive effect on counsels’ ability to resolve discovery disputes before requesting court involvement.” Also according to this report, Principle 1.02 was often viewed as incredibly useful and allowed counsel to cooperate with each other while fulfilling their obligation to zealously advocate on behalf of their clients.6

It is no secret that a lack of knowledge is at the root of many ediscovery failures and is a necessary precondition to effective cooperation, yet the calls for increased education have focused on short-term solutions. Familiarity with rules and best practices is not enough to solve a systemic problem. A long-term solution in the form of more in-depth, formalized education is necessary. Law schools must educate future attorneys on ediscovery principles, and knowledgeable practitioners must share their ediscovery expertise with their colleagues through continuing legal education (CLE) courses.

Building a Solid Foundation

While education may help foster cooperation, it is only one piece of the puzzle. In the meantime, courts still need practical tools to address the current lack of cooperation and skyrocketing discovery costs.

One of the more novel approaches has been the use of phased discovery. In a recent discovery order from the Northern District of Illinois, Magistrate Judge Nan R. Nolan (chair of the Seventh Circuit Pilot Program, discussed earlier) ordered the parties to engage in a “phased discovery schedule.”7 After familiarizing themselves with ediscovery principles including cooperation, the parties were ordered to engage in “cooperative discussions to facilitate a logical discovery flow.” Consistent with principles of proportionality and the Federal Rules of Civil Procedure, this flow was to begin with completing Rule 26(a) initial disclosures, followed by a narrowing of the discovery scope to “claims most likely to go forward” and, finally, prioritizing discovery efforts according to sources that are least “expensive and burdensome.”8 Last, and arguably most important, Judge Nolan dictated that “nothing in this Order shall prejudice the parties from conducting all forms of discovery” if necessary in the future, making clear that phased discovery does not mean limited discovery.

The concept of proportionality in the context of document production is well-suited to address many of the cost problems. Although relatively few courts have expressly ordered it, there is little conflict over its value. In the production context, proportionality is logical, cost-effective and in harmony with the underlying principle of liberal discovery.9 Unfortunately, production is only one part of the ediscovery process.

Preservation is no less important to the ediscovery process than production; however, its relationship with proportionality may be slightly more dubious. In Orbit One Communications v. Numerex Corp., the Southern District of New York rejected the standard of “reasonableness and proportionality” advocated in Victor Stanley II and Rimkus Consulting Group as “too amorphous to provide much comfort to a party deciding” what information to retain. Instead, the court favored the Zubulake IV standard of retaining “all relevant documents . . . in existence at the time the duty to preserve attaches.”10 Courts are understandably reluctant to grant too much leeway to parties to determine what information is worth saving on the reasonableness and proportionality criteria dictated throughout case law and the rules. Proportionality and “phasing” have become critical because litigants have been unable to effectively manage their growing masses of ESI. Data proliferation has shown no sign of slowing down, so there is little reason to believe that proportionality and phased approaches to ediscovery can be a viable long-term solution when neither addresses the underlying issue – proper ESI management.

Technology is designed to make difficult tasks easier. Many corporations are in a quandary, however, because they have adopted technology to create information more efficiently without also implementing technology to manage it more efficiently. In regard to ESI preservation, enterprise archiving technology that can manage vast stores of data with remarkable efficiency is readily available. In addition, hosted discovery repositories provide a cost-effective and secure location to preserve, filter and search large volumes of ESI that are, or may likely become, relevant to litigation and investigations. On the other end of the ediscovery process, technology-aided document review tools are poised to revolutionize this part of the process, which is typically the most expensive and time-consuming. Historically, there simply may not have been a strong enough countervailing incentive to manage the growing stores of information, but it is a safe bet that the interests of justice will soon fill that void and litigants will be expected to responsibly manage their information throughout its life cycle.

Conclusion

No doubt cooperation is imperative to managing an effective ediscovery process, but court orders and sanctions only go so far. Fostering cooperation in the long term will require a paradigm shift in the way litigators approach the ediscovery process. A key piece of this lies in ensuring that jurists and litigants understand this complicated process. As for proportionality, novel approaches such as phased discovery may be sufficient to stave off the tradition of liberal discovery for now, but there is a demonstrated need to revolutionize the process in terms of technology and efforts used to manage data more cost-effectively and efficiently. While the best answer may be unclear, what is perfectly evident is that we already have all the pieces to solve the puzzle – we just need to put them all together.

1 See American Bar Association Model Rules of Professional Conduct, Rules 1.1, 3.2 and 3.4, available at: www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model_rules_of_professional_conduct_table_of_contents.html.

2 See Kroll Ontrack, Fourth Annual ESI Trends Report (2010) (Finding 13: On average, companies spend $1.25 million per year on discovery); also The Kroll Ontrack Year in Review 2010, available at: www.krollontrack.com/company/news-releases/?getPressRelease=61500.

3 The Sedona Conference® has provided numerous commentaries on proportionality and cooperation that practitioners should read. See The Sedona Conference® Cooperation Proclamation; also The Sedona Conference® Commentary on Proportionality in Electronic Discovery, available at: www.thesedonaconference.org.

4 See Mt. Hawley Ins. Co. v. Felman Prod., Inc., 2010 WL 1990555 (S.D.W.Va. May 18, 2010) (Plaintiff’s failure to perform critical quality-control sampling and other discovery failures resulted in the inadvertent production of an alleged “smoking gun” e-mail).

5 Available at: www.ilcd.uscourts.gov/Statement%20-%20Phase%20One.pdf.

6 Seventh Circuit Electronic Discovery Pilot Program Phase One Report available at www.7thcircuitbar.org/associations/1507/files/05-2010%20Phase%20One%20Report%20and%20Appendix%20with%20Bookmarks.pdf.

7 Tamburo v. Dworkin, 2010 WL 4867346 (N.D. Ill. Nov. 17, 2010).

8 Id. at 3.

9 Fed.R.Civ.P. 26(b)(1) (“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense”).

10 2010 WL 4615547 (S.D.N.Y. Oct. 26, 2010).

Note: The above post appeared in the May 2011 issue of the free, monthly e-newsletter, Case Law Update & Trends published by Kroll Ontrack. This newsletter is designed to help busy legal professionals keep pace with case law and information pertaining to electronic evidence. Subscribe and gain valuable and timely information on new ESI court decisions, as well as informative articles and tips for both the corporate and law firm audience.

October 2017 Ediscovery Case Summaries

Court Issues Sanctions for Loss of Cell Phone Data by Non-Party, Holding that “Control” for FRCP 37(e) Applies to Non-Parties
Ronnie Van Zant, Inc. v. Pyle, 2017 U.S. Dist. LEXIS 138039 (S.D.N.Y. Aug. 28, 2017)

Court Declines to Impose Sanctions for Litigation Hold that Gave Employees Self-Preservation Discretion
N.M. Oncology & Hematology Consultants v. Presbyterian Healthcare Servs., 2017 U.S. Dist. LEXIS 130959 (D.N.M. Aug. 16, 2017)

Citing “Reasonably Calculated” in Discovery Request is “All Too Familiar, But Never Correct”
Pothen v. Stony Brook Univ., 2017 U.S. Dist. LEXIS 146026 (E.D.N.Y. Sept. 8, 2017)

Court Emphasizes Equal Use of the Rule 26(b)(1) Proportionality Factors
Oxbow Carbon & Minerals LLC v. Union Pac. R.R., 2017 U.S. Dist. LEXIS 146211 (D.D.C. Sept. 11, 2017)

For Productions “Reasonably Usable Form” (and Not “Form Ordinarily Maintained”) Is the Standard for FRCP 34
Ortega v. Mgmt. & Training Corp., 2017 U.S. Dist. LEXIS 3861 (D.N.M. Jan. 6, 2017)

50 States: Civil Procedure Rules in State Court – Part 2

Cue the fanfare…The new and improved rules map is here!

This spring, we worked to update our state ediscovery rules map – looking at each state’s civil procedure rules and how they approach ediscovery. Want to know which states have already adopted the 2015 Federal Rules of Civil Procedure (FRCP) amendments? Which states are still following the 2006 FRCP language relating to ediscovery? What states don’t have any ediscovery provisions whatsoever?

We looked at each of the 50 states (plus the District of Columbia), classifying them into five color-coded areas:

  • A pink state has substantially adopted the 2015 FRCP Amendments. There are three pink states: Arizona, Colorado and Wyoming.
  • A yellow state is actively taking on or considering new rules: either a version of the FRCP or its own. There are four yellow states: Florida, Kansas, Mississippi and Oklahoma.
  • A blue state has adopted and continues to follow the 2006 FRCP Amendments. There are 27 blue states, which includes every state not listed in another category.
  • A green state marches to the beat of its own drum, using unique language and standards. There are 14 green states: Connecticut, Delaware, Georgia, Illinois, Missouri, Nebraska, Nevada, New Hampshire, New York, Pennsylvania, Rhode Island, Texas, Utah and Washington.
  • A grey state signifies that the state has no ediscovery rules in place at this time. There are three grey states: Kentucky, South Dakota and West Virginia.

With so many jurisdictions, we want you to know the restrictions. From Hawaii to Virginia and Florida to Oregon, click each state to view its pertinent statutes and rules, along with suggestions for further reading about that state’s ediscovery protocols.

Ediscovery Rules & Statutes (Not Just a Pretty Map)

As we shared with you in our first blog on the 50 states of ediscovery, it has been a while since our map was updated. Some states made drastic changes, while others were happy with their own status quo. What happened in your state? Here is just a sample of what you will find.

Colorado Climbs Onboard

The Rocky Mountain State changed from grey to pink in 2015 when it adopted the then-upcoming FRCP amendments of the same year. A couple small differences remain: Colorado’s version reads Rule 26 in conjunction with Rule 1 to “secure the just, speedy, and inexpensive determination of every action.” Also, its Rule 37 does not mirror the FRCP.

Connecticut Calls its Own Shots

Some states adopted the 2015 FRCP, some did not and still others came up with their own version. Connecticut did all three, which earned it a swap from blue to green on our map. While Connecticut adopted the 2015 FRCP’s proportionality language, its sanctions wording is similar to that of the FRCP’s 2006 version. Interestingly, the state also includes an ethical requirement of “technological competence” as part of an attorney’s obligation to keep up with changes in the practice of law.

Illinois Gets Ahead of the Game

Illinois’ motto is “State Sovereignty, National Unity” and that sentiment is certainly reflected in its state Rules of Civil Procedure. Its many unique ediscovery provisions means it changed from yellow to green on our map. Illinois shares the FRCP’s emphasis on proportionality, with the state’s committee commenting that this amendment was added primarily to address the discovery of ESI. Illinois’ rules go even further by creating a list of ESI that should not be discoverable due to difficulty, but keeps its eye on the horizon by emphasizing flexibility as technology continues to advance.

Oklahoma: Amendments on the Horizon

Oklahoma adopted the 2006 FRCP in 2010. In early 2017, the state legislature proposed amendments to adopt the 2015 FRCP’s proportionality language and those amendments are still pending. Statute §12-3225 drops “liberally construed” and adds “construed, administered, and employed by courts and parties to secure” the just, speedy and inexpensive determination of action to mimic FRCP Rule 1. Its §12-3226 proposal mirrors the 2015 FRCP Rule 26(b) with one exception: it retains the phrase “reasonably calculated” just before the “relevant and proportional” wording. These proposed changes are enough to bump Oklahoma’s color from blue to yellow.

While the 50 states have rules almost as diverse as the states themselves, it is clear that the FRCP has had a role in shaping state civil procedure models. Over the next year, it is likely that more states will amend their rules to reflect the new FRCP, while others will continue to utilize their own unique standards.

If you practice in state court anywhere across the country, you need to know the discovery requirements, because they may be similar to the new FRCP or vastly different. Keep yourself in-the-know and check out each of the 50 states plus the District of Columbia today on KrolLDiscovery’s Rules and Statutes Map.

Spring Digest: Everything You Need to Know (so far!) in 2017

Ediscovery has been busy this year. We’re only five months in and we’ve already seen developments in predictive coding, proportionality standards and ediscovery practices around the world.

Before you head off on your summer vacation, take a minute to refresh yourself on some of the hottest topics in ediscovery so far this year.

Proportionality is Key

One of the most significant amendments to the Federal Rules of Civil Procedure back in 2015 was a new requirement for discovery to be “proportional to the needs of the case.” Today, counsel must ensure that their discovery requests are specific and add value to their case in relation to the accompanying expense.

Australia Gets in the Predictive Coding Game

First the United States, then Ireland and England, and now Australia. Predictive coding (also known as TAR) continues to spread around the world as courts encourage parties to consider technology to discover and inspect documents.

Using Cellebrite in Mobile Phone Investigations

You need not be a computer wizard to appreciate the volumes of relevant data housed on the mobile device in your hand. The standards and technology for extracting mobile device data are still progressing, variable and slightly confusing. KrolLDiscovery’s Jason Bergerson answers common questions around specific technology and processes in mobile phone investigations.

Ediscovery Around the World

Throughout this year, KrolLDiscovery will be diving deep into ediscovery practices around the world. We hope you’ll join us as we explore data collection, privacy, proportionality and production practices in the Americas, EMEA and APAC. So far, we’ve stopped in Australia, Ireland, Canada, the U.K. and Germany to discuss some ediscovery trends in each locale.

Be sure to sign up for updates from The Ediscovery Blog to stay on top of everything ediscovery.

50 States: Civil Procedure Rules in State Court – Part 1

The 2015 FRCP Amendments have been in effect for over a year and federal courts have been increasingly vocal in the areas of proportionality, spoliation and sanctions. Have states followed suit?

The last time KrolLDiscovery rolled out a comprehensive look at state ediscovery rules was after the 2006 FRCP Amendments. Back then, we saw that some states had been quick to address ediscovery, with many states adding their own unique flavor. Fast forward to the 2015 FRCP Amendments: Are states adopting the new language in their civil procedure rules or are they taking their own approaches?

At KrolLDiscovery, we have been looking at each states’ civil procedure rules, and we are excited to bring you the first of our updates. Here is the latest on what three states have been doing since the 2015 FRCP Amendments were enacted.

Texas, An Ediscovery Pioneer

The Lone Star State was one of the first jurisdictions to enact ediscovery rules and it lives up to its name by writing its own rules. Currently, its focus is on the spoliation of evidence, as the current rules are not clearly defined. In April 2016, the Texas Supreme Court requested review of a proposal that would solve this problem. No decisions have been made yet, but it has joined federal courts in making this a central discovery issue in 2017.

Examine current information on state ediscovery rules in Texas.

Massachusetts Takes One Step Forward with Rule 1

In Massachusetts, lawmakers initially proposed adopting the 2015 FRCP Amendments and the issue was intensely debated. Ultimately, the state decided to stick with the 2006 language, but made an exception for Rule 1, placing equal responsibility on the parties and the courts to “ensure the just, speedy, and inexpensive determine of every action,” promoting cooperation among litigants.

Look at developments in state ediscovery rules in Massachusetts.

New York Does Its Own Thing

New York has adopted its own ediscovery framework by adding subtle ESI accommodations to its existing rule language. For example, it adds an entire section addressing ediscovery from non-parties and requires counsel for parties who anticipate ediscovery to be “sufficiently versed in . . . their clients’ technological systems to discuss [ediscovery issues] competently” at pretrial conferences.

Learn more about state ediscovery rules in New York.

Over the next month, we will work to update each of the 50 states on our Rules and Statutes Map. If you are tracking ediscovery provisions in state courts, stay tuned throughout the next month for further updates!

United Kingdom: Ediscovery Around the World

The United Kingdom, a common law jurisdiction, is the second most established geography for ediscovery after the United States. There is a high degree of familiarity with ediscovery in the United Kingdom because edisclosure is a formal stage of the civil litigation process, governed by Part 31 of the Civil Procedure Rules, along with associated Practice Directions.

Our next stop exploring data collection, privacy, proportionality and production practices in the Americas, EMEA and APAC brings us to the United Kingdom.

How are ediscovery practices in the United Kingdom different from neighboring countries or the United States?

Because there has been a keen emphasis on proportionality for a longer time, edisclosure in the United Kingdom is narrower than ediscovery in the United States.  In addition, unlike many of its European neighbours, the United Kingdom has had edisclosure form part of its Civil Procedure Rules for over a decade. During that time, practical know-how regarding ediscovery technology has spread beyond litigation, so most lawyers are comfortable with the advantages a full analysis of electronic evidence can bring to their case.

How are data protection and privacy laws impacting ediscovery in the U.K.?

U.K. law firms frequently face cross-border discovery issues, which comes with the significant challenge of transferring data across borders to countries where different rules and regulations apply. While the United Kingdom is considered less strict than Russia and China, the EU General Data Protection Regulation (GDPR) might change this. Further, impending Brexit implications are also expected to have some impact on the way that data is handled for disputes and investigations in the United Kingdom. The bottom line: in the midst of this uncertainty, it seems sure that there will be more scrutiny on the holding of personal data and more fearsome penalties for mishandling personal data in the future.

What best practices are recommended for conducting ediscovery in the United Kingdom?

Akin to ediscovery practices around the world, edisclosure in the U.K. is often delivered by collective teams, making teamwork an absolute best practice. Further, similar to many other countries, disclosure and regulatory deadlines must be met in a well-ordered and timely fashion. The urgency and precise requirements of ediscovery cases carry a high degree of risk, so “getting it right” calls for expertise, care and coordination, as well as responsive support. For this reason, practicing ediscovery is as much about the people you work with, as it is about the technology you use.

In the U.K., companies and their counsel are interested in taking a more surgical approach to data selection. Instead of using keywords, review platforms offer analytical tools that can reveal more about the data, helping to provide a better understanding of who was involved, how they communicated and the words they actually used. In medical terms, this level of sophistication is akin to keyhole surgery, as opposed to older and cruder methods. Additionally, ediscovery technology can be used to perform proactive checks on employee behavior. Keeping up to date with ediscovery market developments is another new ‘best practice.’ The United Kingdom has a competitive ediscovery industry, so being able to quickly select the right provider for a quantifiable advantage (such as local presence or a particular technology) is of tremendous benefit.

Looking to stay up to speed on global ediscovery practices? Don’t miss this whitepaper, “A Practical Guide to Cross-Border Ediscovery.” From predictive coding practices in Australia and Ireland to cooperation in Canada, KrolLDiscovery is your international ediscovery resource.

Corporate Counsel: Watch These 5 Ediscovery Trends in 2017

If you are in-house counsel, you need to be in-the-know when it comes to ediscovery. 

As amendments to the Federal Rules of Civil Procedure (FRCP) take hold, 2016 saw major changes in ediscovery standards and 2017 will build on this momentum. In the upcoming months, expect courts to continue to define proportionality, embrace technology and become less forgiving of attorneys who lag behind and use outdated rules. Recently, I had the opportunity to publish an article in Today’s General Counsel. Ediscovery Trends to Watch in 2017 discusses the weighty ediscovery issues that in-house counsel must address throughout this year.

  1. Cooperation is expected. In 2016, court decisions made it clear that under amended FRCP Rule 26, it is the parties, not the courts, who need to manage discovery. Without cooperation, courts quickly return discovery disputes back to the parties for resolution. In-house counsel can reduce their costs by addressing discovery issues upfront with their opponents and avoiding costly court hearings and irate judges.
  1. Proportionality is key. Perhaps the biggest change to the discovery rules was a new requirement for discovery to be “proportional to the needs of the case.” In-house counsel must ensure that their discovery requests are specific and add value to their case in relation to the accompanying expense.
  1. Be prepared to defend or refute costs. Under the proportionality doctrine, courts look closely at the balance between benefit and burden. Requesting parties should be prepared to foot the bill for costly discovery if a greater benefit is not illuminated. When refuting a request as too burdensome, be ready to argue an imbalance with the benefit and suggest shifting the cost to the requesting party.
  1. Accountability matters when spoliation occurs. Under amended FRCP Rule 37(e), when a party claims lost or damaged evidence, courts will not find spoliation unless there was an “intent to deprive the other party.” However, in-house counsel must be prepared to explain “reasonable steps” taken to preserve evidence and prove that it cannot be reproduced in another format.
  1. TAR is the new norm. Savvy counsel will leverage predictive coding and Technology Assisted Review (TAR) to increase document review efficiencies and reduce costs. 2017 will likely see additional commentary from the bench on the use of TAR and counsel must be ready.

Read the full article, Ediscovery Trends to Watch in 2017, to grasp the full picture of what’s to come in ediscovery this year.

The Luck of the Irish…and Predictive Coding

On this St. Patrick’s Day, it’s opportune to revisit a prominent Irish judicial opinion – in fact, the first known judicial opinion in Europe to endorse predictive coding.

In the spring of 2015, Ireland embraced predictive coding in Irish Bank Resolution Corporation Ltd v. Quinn [2015] IEHC 175, a case holding that, in the discovery of large data sets, technology assisted review (TAR) using predictive coding is at least as accurate as, and probably more accurate than, the manual or linear method of identifying relevant documents.

The judgment is a great read for predictive coding pundits and a shining endorsement of the potential benefits of this technology. Specifically, the court held that:

  • The rules of court in Ireland do not require a manual document review to be carried out;
  • The evidence establishes that in discovery of large data sets, TAR using predictive coding is at least as accurate as, and probably more accurate than, the manual or linear method in identifying relevant documents;
  • As TAR combines man and machine, the process must contain appropriate checks and balances which render each stage capable of independent verification. The parties need to agree to these;
  • Provided the process has sufficient transparency, TAR using predictive coding discharges a party’s discovery obligations;
  • Predictive coding will save time and money if used to refine a data set and to limit the pool of documents to be manually reviewed. It was projected that 10% of the 680,809 documents would need to be manually reviewed after employing predictive coding, as compared to the traditional linear review estimate that required a team of 10 experienced reviewers, a nine month time frame and a cost of two million Euros; and
  • Parties should first agree to the use of predictive coding, run agreed upon keyword searches to initially refine the data set and then use predictive coding subject to agreed-upon checks and balances. Documents suggested by the software as being potentially relevant should then be reviewed manually by a human review team.

The ruling addressed major concerns expressed about predictive coding and sought to sway the skeptics. It unequivocally stated that predictive coding will save time and money. Although there is no specific reference to proportionality in Irish law, the judgment stated that cost should not be a barrier on access to justice.

The Irish opinion relied significantly on Judge Peck’s Da Silva Moore opinion, setting the predictive coding tone in the United States in 2012. A year after Ireland’s Quinn opinion, the U.K. would celebrate its first judicial opinion referencing predictive coding when the English High Court issued Pyrrho Investments Ltd. v. MWB Property Ltd. [2016] EWHC 256 (Ch). In that case, Master Matthews estimated that predictive coding would offer significant cost savings and that the possible disclosure of over two million documents done via traditional manual review would be disproportionate and “unreasonable.” Late in 2016, Australia joined the list of countries tackling predictive coding issues when Justice Vickery from the Supreme Court of the State of Victoria issued a key opinion in McConnell Dowell Constructors v. Santam.

As we continue through 2017, what country will be next to focus on predictive coding? Don’t miss any development; subscribe to KrolLDiscovery’s weekly email updates.

 
css.php