Looking Back, Peering Forward: The Top Ediscovery Cases of 2016

The 2015 FRCP amendments are now one year old and there are a full twelve months of case law to guide practitioners through the contours of the new rules. The last year in case law has seen stark developments on how courts interpret the proportionality, levy sanctions, utilize new technologies and reconsider costs to make ediscovery “just, speedy and inexpensive.”

Our webinar, The Top Ediscovery Cases of 2016, updates practitioners on the ediscovery highlights of the past year and features three ediscovery experts, offering the perspective of both counsel and judges:

  • Patrick Oot, Shook, Hardy & Bacon
  • Magistrate Judge Hildy Bowbeer, District of Minnesota
  • Magistrate Judge David J. Waxse, District of Kansas

Rule 26(b)(1): Proportionality Today

The webinar first discusses that the most drastic change of Rule 26(b)(1) is the essential change of mindset. The case Gilead Scis. v. Merck is used as an example to illustrate the place of proportionality in ediscovery. Gilead reveals the required sound reasoning both a party requesting discovery and a party objecting to discovery need to employ. In other words, “now the scope of discovery is neither broad nor liberal…it is proportional.” Attorneys that ignore proportionality do so at their own risk: the case Fulton v. Livingston Fin. is also used to show how the court imposed sanctions on a litigant who made arguments based on the old rule.

Rule 37(e): Sanctions Illustrated

The webinar then discusses the scope of Rule 37(e) and addresses the need to utilize “reasonable steps” to prevent sanctions, as this rule was formed with the intent of curtailing excessive ESI storage. The webinar uses the case Marten Transp. v. Plattform Adver. to show that the scope of a preservation duty is focused: courts expect “reasonable steps,” not perfection. The case Living Color is also used to highlight the fact that parties cannot simply make conclusory statements about prejudice resulting from ESI spoliation without any evidence and expect the court to levy sanctions.

One reason for excessive ediscovery costs is a cultural one and the webinar highlights that Rule 37(e) fits with Rule 1, which was amended for this reason. Cooperation between litigants is a key component of successful preservation, and a panelist observed, “Lawyers too often ignore their obligation to cooperate.”

Predictive Coding: New Frontiers

There are two myths underlying document review discussed in the webinar. The first is the myth that a response to discovery needs to be perfect when in fact the rules call only for “reasonable inquiry.” The second myth is that human review is the best way to ensure responsive documents are not missed when manual review has been shown to be imperfect. In this webinar, the discussion of these two myths sets the stage for asserting that predictive coding technology can be utilized to make ediscovery a more efficient practice.

2017: The Year of Ediscovery

In 2017, one common wish is that attorneys become better educated in ediscovery and the new technologies available. Courts will continue to dissect what constitutes reasonable steps for ESI preservation and also provide additional guidance for when discovery is proportional. Even though counsel may not be proficient in proportionality, the webinar concludes by stating that judges “recognize proportionality when they see it.”

With new opinions continuing to emerge, we expect the ediscovery landscape in 2017 to continue to evolve. Watch this webinar, The Top Ediscovery Cases of 2016, to learn more about the impact of the 2015 FRCP amendments and predictions for the upcoming year.

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.

 

#WaybackWednesday: Mobile Device Investigations Webinar

A smartphone from a key employee lands on your desk, what next? From employment matters and IP theft cases to Foreign Corrupt Practices Act violations and corporate fraud, mobile devices are the modern reservoir for key data in litigation and investigations. However, this new data source is still uncharted territory for many legal and technology professionals working in law departments and law firms.

Last month, Kroll Ontrack’s own Jason Bergerson presented a useful webinar, Mobile Device Investigations: From Android to iPhone and Back, that provided an introduction to the world of mobile device investigations.

The Complex World of Mobile Data

The webinar began with an introduction to the world of mobile data and it was highlighted that there are many different types of data on mobile phones, each one needing a certain process to identify and extract data properly. While smart phones have been equated to computers, it is important to remember that they are not computers and to treat them the same can be a sanctions-worthy mistake.

The webinar walked through the computer forensic investigative process and provided helpful tips to keep in mind regarding the content in various apps and which data might be the most useful in litigation. The webinar highlighted the complexity of the varieties of data and things to consider when pursuing a forensics investigation.

Not All Phones Are the Same

This webinar also discussed at length the fact that cell phones themselves are a diverse category. Modern smart phones, burner phones, older flip phones and international models each have their own systems and methods of storing data. Furthermore, it needs to be considered where the data is physically located. Is it in the cloud? Or in the device in-hand? Each of these impacts the forensic method and the likelihood of success. The webinar provided various considerations for practitioners, depending on the sort of device at issue in their case.

It Was Deleted; Is It Gone?

In this webinar, various scenarios were explained in which mobile device data might be seemingly lost, but could still be recovered. Also, it was shown how some deleted data can be recovered, but there is a very short time frame in which to do so. The webinar provided guidance for practitioners on how to proceed, so that investigative team can have the best odds of successfully obtaining the needed data.

We at Kroll Ontrack know that time demands and schedules make it difficult to attend webinars. Therefore, we have all our webinars online to view on demand, so that you won’t miss out on information that matters.

2016: Ediscovery Year in Review

All good things must come to an end; even a great year in ediscovery.

As another year wraps up, we look back at a year that brought great changes to ediscovery. There is no better time than now to remember the highlights of ediscovery case law in 2016. The arrival of the FRCP amendments in December 2015 altered ediscovery practice and set new precedents. The duty to preserve, a new emphasis on proportionality and the intent to deprive dominated ediscovery judicial opinions as courts applied the new FRCP amendments.

Beyond the domination of preservation, proportionality and production, Kroll Ontrack’s analysis of 57 significant state and federal ediscovery opinions led to the classification of 4 major categories that arose most commonly in 2016 ediscovery case law. The most important of these cases are summarized in Kroll Ontrack’s guide, Top Ediscovery Cases of 2016. This guide includes the following topics and cases:

56 percent of opinions dealt with disputes involving production and the methods used, and arguments about proportionality and the scope of discovery.

  • Fulton v. Livingston Fin., 2016 U.S. Dist. LEXIS 96825 (W.D. Wash. July 25, 2016)
  • Carr v. State Farm Mut. Auto. Ins., 312 F.R.D. 459 (N.D. Tex. 2015)
  • Jackson v. E-Z-Go. Div. of Textron, 2016 U.S. Dist. LEXIS 146951 (W.D. Ky. Oct. 24, 2016)
  • Gilead Scis. v. Merck, 2016 U.S. Dist. LEXIS 5616 (N.D. Cal. Jan. 13, 2016)

32 percent of opinions dealt with disputes involving preservation, spoliation and motions for sanctions.

  • Orchestratehr v. Trombetta, 2016 U.S. Dist. LEXIS 51405 (N.D. Tex. Apr. 18, 2016)
  • Living Color Enters. v. New Era Aquaculture, 2016 U.S. Dist. LEXIS 39113 (S.D. Fla. Mar. 22, 2016)
  • Marten Transp. v. Plattform Adver., 2016 U.S. Dist. LEXIS 15098 (D. Kan. Feb. 8, 2016)
  • GN Netcom v. Plantronics, 2016 U.S. Dist. LEXIS 93299 (D. Del. July 12, 2016)
  • Cat3 v. Black Lineage, 2016 U.S. Dist. LEXIS 3618 (S.D.N.Y. Jan. 12, 2016)

4 percent of opinions addressed cost considerations, such as cost shifting and taxation of costs.

  • R. Med. Emergency Grp. v. Iglesia Episcopal Puertorriqueña, 2016 U.S. Dist. LEXIS 99391 (D.P.R. July 26, 2016)
  • Elkharwily v. Franciscan Health Sys. 2016 U.S. Dist. LEXIS 99795 (W.D. Wash. July 29, 2016)

9 percent of opinions discussed procedural issues, such as search and predictive coding protocols.

  • Dynamo Holdings v. Comm’r of Internal Revenue, 2016 WL 4204067 (T.C. July 13, 2016)
  • Hyles v. New York City, 2016 U.S. Dist. LEXIS 100390 (S.D.N.Y. Aug. 1, 2016)
  • Pyle v. Selective Ins. Co. of Am., 2016 U.S. Dist. LEXIS 140789 (W.D. Pa. Sept. 30, 2016)
  • In re Viagra (Sildenafil Citrate) Prods. Liab. Litig., 2016 U.S. Dist. LEXIS 144925 (N.D. Cal. Oct. 14, 2016)

The guide also includes a special section on International Predictive Coding, discussing the major opinions to emerge from overseas.

  • Pyrrho Investments Ltd. v. MWB property Ltd., [2016] EWHC 256 (Ch)

Looking for more? Check out our Top Ediscovery Cases of 2016 guide to review these significant ediscovery cases.

A Warm Fire, a Hot Drink and a New Legal Hold Guide

Snow flakes, steaming drinks and friendly gatherings are some of the best parts of December – and no classic winter gathering is complete without a roaring fire. But practitioners know not all fires bring great memories: legal hold wildfires and resulting sanctions can dampen winter joy. Fortunately, Kroll Ontrack has just released a newly updated guide, Preventing a Legal Hold Wildfire, so that nothing ruins your winter delights.

The Sanctions Outside are Frightful

The December 1, 2015 FRCP amendments and this year’s court decisions, such as GN Netcom v. Plantronics, 2016 U.S. Dist. LEXIS 93299 (D. Del. July 12, 2016), reiterate the importance of the duty to preserve electronically stored information (ESI). Recognizing your company’s or client’s duty to preserve, when it begins, what it entails and when it ends are key strategies that can save your organization time, money and stress.

But Proper Preservation is so Delightful

The newly updated guide from Kroll Ontrack, Preventing a Legal Hold Wildfire, has tips and tricks so that you do not get caught in the flames. This compact guide features 2016 case law and gives practitioners the starting points that they need to make their own strategies for navigating legal holds.

Since We Know Just Where to Go

Knowing what your organization needs to do and how to do it are two very different tasks; parties need to have their legal hold processes and systems in check. Kroll Ontrack has professional consultants for every aspect of the ediscovery process. And, when it comes to legal holds and how to implement them, Jackie Warner, one of our legal hold consultants, is a pro. Contact Jackie today for an initial legal hold consultation.

December 2016 Ediscovery Case Summaries

Failing to Cooperate Has Negative Consequences for Party
Venturedyne, Ltd. v. Carbonyx, Inc., 2016 U.S. Dist. LEXIS 157722 (N.D. Ind. Nov. 15, 2016)

Court Holds “Skepticism” Not Enough for Computer Forensic Search
Coast to Coast Eng’g Servs. v. Roop, 2016 U.S. Dist. LEXIS 154758 (D. Me. Nov. 8, 2016)

Court States “Old Habits Die Hard” With the New FRCP
In re Bard IVC Filters Prods. Liab. Litig., 2016 U.S. Dist. LEXIS 126448 (D. Ariz. Sept. 16, 2016)

Court Upholds High Bar for Sanctions
Richard v. Inland Dredging Co., LLC, 2016 U.S. Dist. LEXIS 134859 (W.D. La. Sept. 29, 2016)

Court Finds Lesser Sanctions of District Court Sufficient
BMG Rights Mgmt. (US) LLC v. Cox Communs., Inc., 2016 U.S. Dist. LEXIS 105981 (E.D. Va. Aug. 8, 2016)

Happy Anniversary, FRCP Amendments!

Ediscovery professionals are celebrating the one-year anniversary of the amendments to the Federal Rules of Civil Procedure. With 365 days of applying the new rules, now is a great time to ask: What’s been the impact of the FRCP amendments?

Take the FRCP amendments survey – and enter to win a prize!

How do you think the amendments have impacted ediscovery practices? What about preservation practices in Rule 37(e)? Clawback motions? The questions are simple and we want to know what you think.

After you answer five easy questions about how the FRCP amendments have impacted ediscovery practices, you will be entered to win a Kindle Paperwhite e-reader.

DOJ ANTITRUST DIVISION ISSUES NEW MODEL SECOND REQUEST, WITH NEW PREDICTIVE CODING INSTRUCTIONS

On November 28, 2016, the Department of Justice (DOJ) Antitrust Division issued an updated Model Second Request, aimed at revising and streamlining the model to conform to “current division practice.” The updated Model will be used for all Second Requests issued on or after December 12, 2016. The new model contains significant changes to merging parties’ obligations during a Second Request, as well as a substantial formatting overhaul.

Regarding the use of ediscovery technology during a Second Request from the DOJ, the predictive coding instructions were meaningfully modified.

First, the new model appears to signal an increased acceptance of use of predictive coding during a second request. Specifically, the searching and predictive coding instruction begins with the following new language, “Before using software or technology…” seemingly indicating that the Antitrust Division recognizes that it is not a matter of “if” parties are leveraging technology but “when” and “how” that technology will be used.

Second, the new model requires merging parties and their counsel to be more astute than ever before when it comes to ediscovery technology. For example, if search terms are used, merging parties must now submit a list of stop words and operators for the platform being used. Also, if predictive coding technology is used to identify or eliminate documents, merging parties must provide more than just a description of the methods being used. Under this new model, the Antitrust Division also is requiring information about the use of subject matter experts to review seed sets and training documents, effectiveness metrics (such as recall, precision and confidence-intervals) and validation protocols, including sampling protocols used to categorize non-responsive documents.

The new predictive coding and searching instruction is provided in full below:

November 2016 Version – DOJ Model Second Request

  1. Before using software or technology (including search terms, predictive coding, de-duplication, or similar technologies) to identify or eliminate documents, data, or information potentially responsive to this Request, the Company must submit a written description of the method(s) used to conduct any part of its search. In addition, for any process that relies on search terms to identify or eliminate documents, the Company must submit: (a) a list of proposed terms; (b) a tally of all the terms that appear in the collection and the frequency of each term; (c) a list of stop words and operators for the platform being used; and (d) a glossary of industry and company terminology. For any process that instead relies on predictive coding to identify or eliminate documents, you must include (a) confirmation that subject-matter experts will be reviewing the seed set and training rounds; (b) recall, precision, and confidence-level statistics (or an equivalent); and (c) a validation process that allows for Department review of statistically-significant samples of documents categorized as non-responsive documents by the algorithm.

As these new instructions reinforce, Second Requests are synonymous with sheer complexity. At Kroll Ontrack, we have leading technology backed by human experts who know how to successfully navigate a Second Request. Kroll Ontrack is uniquely equipped to help manage your document productions to the FTC, DOJ and other global competition bureaus.

Making Cents Out of Ediscovery Costs [Webinar]

Ediscovery does not have to be expensive. By utilizing the newest technologies, engaging in skillful preparation and obtaining knowledge of the process, you can keep ediscovery costs down. Kroll Ontrack’s latest webinar, Cost-Effective Ediscovery: How to Manage Expense and Reduce Waste provides useful tips and suggestions from three seasoned ediscovery specialists. These experts provide law firm, corporate and provider’s perspectives:

Don’t Be Late to Adopt New Technology

The myth that human review is the gold standard, as well as apprehension on how a court regards technology has led some practitioners to shy away from taking advantage of technological opportunities. However, as the webinar panelists discuss, predictive coding is an untapped resource for practitioners aiming to cut ediscovery costs.

Don’t Just Buy Ediscovery: Manage It

The webinar discusses that keeping ediscovery costs in check is not as simple as choosing the right provider. While setting a budget and considering fee schedules are important, this is not all that needs to be done to influence ediscovery costs. Panelists suggested:

  • Monitoring costs along the way; ask for regular updates
  • Communicating with corporate, law firm and provider representatives; lack of communication increases costs
  • Cooperating with opposing parties where possible; come to an agreement on things such as the number of custodians, production parameters and document review protocols

Don’t Miss the Opportunity to Get Proactive

Being prepared for ediscovery saves downstream costs. Webinar panelists highlighted the importance of ediscovery assessments and postmortem evaluations in pinpointing risks and identifying cost reduction recommendations across discovery response plans.

Watch this webinar, Cost-Effective Ediscovery: How to Manage Expense and Reduce Waste to learn even more about how to make budget-friendly ediscovery not just a possibility, but a reality.

November 2016 Ediscovery Case Summaries

Court Declines to Compel a Party to Utilize Predictive Coding
In re Viagra (Sildenafil Citrate) Prods. Liab. Litig., 2016 U.S. Dist. LEXIS 144925 (N.D. Cal. Oct. 14, 2016)

No Obligation to Produce Information Outside of a Party’s Legal Right of Control
Jackson v. E-Z-Go. Div. of Textron, Inc., 2016 U.S. Dist. LEXIS 146951 (W.D. Ky. Oct. 24, 2016)

Court Grants Discovery Objection that Was Stated With Specificity
Arenas v. Unified Sch. Dist. No. 223, 2016 U.S. Dist. LEXIS 143338 (D. Kan. Oct. 17, 2016)

Court Holds It Will Not “Micro-Manage” Ediscovery; Orders Parties to Meet and Confer about Search Terms
Pyle v. Selective Ins. Co. of Am., 2016 U.S. Dist. LEXIS 140789 (W.D. Pa. Sept. 30, 2016)

“No Emails Found” is Insufficient; Court Requires Party to Explain Steps Taken to Locate Responsive Email
Carter v. Cummings, 2016 U.S. Dist. LEXIS 137118 (W.D. Wis. Oct. 3, 2016)

 
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