All posts tagged discovery

Throwback Thursday: 6 Months of Case Law Under the New FRCP [Webinar]

A Tale of Two Rules

The first six months after the FRCP amendments produced extensive case law as courts and parties grappled with the application of the new rules. In particular, Rule 26(b)(1) with its emphasis on proportionality and Rule 37(e) with its “reasonable steps” language have impacted the ediscovery environment.

To guide practitioners, Kroll Ontrack has compiled an extensive case law digest containing case summaries and analysis to guide practitioners through the nuances of these new rules. In addition to the downloadable e-book, Kroll Ontrack partnered with Judge Elizabeth Preston Deavers of Ohio and nationally renowned civil procedure expert Tom Allman to present a webinar that explored the most prominent cases and developments.

Rule 26(b)(1): The Age of Proportionality

In the webinar, Judge Deavers discussed the changes to Rule 26(b)(1) and their resulting impact on ediscovery. Most notably, the old and often cited “reasonably calculated” language of this rule has been removed, and the rule was revised to emphasize the need for proportionality. Webinar speaker Tom Allman referenced a new research paper he authored, Proportionality Today, which he made available to webinar attendees.

As the new rules take hold, one theme clearly emerges: There is no substitute for specificity. Parties need to be prepared to explain why their discovery request is both relevant and proportional, while parties that are objecting to discovery need to be able to explain why it is not.

In the background of this is newly amended Rule 1, which encourages cooperation between the parties. Keeping discovery proportional and manageable is no longer solely the responsibility of the courts: parties are now expected to do their part to contain the parameters of discovery and resolve any disputes.

Rule 37(e): Preservation Under the Shadow of Inherent Power

In addition to the Rule 26 discussion, Tom Allman reviewed the amendments to Rule 37(e) in regards to sanctions for ESI spoliation and directed webinar attendees to another piece of his research, Applying Amended Rule 37(e). The new language specifies that “reasonable steps” must be taken to preserve ESI, however the rules do not specify what this constitutes, leaving it to the courts to determine depending on the facts of the case.

Despite the lack of explanation of what constitutes “reasonable steps,” the rule clarifies that a party must still have act with intent or “bad faith” before sanctions will be imposed. Suspicious activity or honest mistakes are not enough to warrant sanctions, in most cases. However, if a party acts irresponsibly to preserve evidence, a court may infer a finding of intent.

In addition, Rule 37(e) has attracted attention because some courts are going beyond the parameters of Rule 37(e) and using their “inherent power” to sanction parties. In these cases, the court reached the conclusion that Rule 37(e) did not provide a suitable remedy for the behavior.

With new opinions emerging on an almost daily basis, the impact of the 2015 FRCP amendments continues to evolve, changing the ediscovery landscape.

Global Predictive Coding: Gold, Silver & Bronze

This week, athletes from around the globe will gather in Rio to compete for gold medals and present years of hard work and dedication. With the Games as a backdrop, there is no better time than to explore our own global phenomenon in ediscovery – predictive coding technology.

Recently, Kroll Ontrack’s Michele Lange and Tracy Stretton co-authored an article for Bloomberg BNA’s Digital Discovery & e-Evidence in which they discussed the way predictive coding is taking the globe by storm.

A Global Predictive Coding Case Law Primer

Taking the gold medal for the first predictive coding judicial opinion, several years ago American courts approved the use of predictive coding technology in discovery, making it widely recognized and respected. In March 2015, Ireland earned the silver medal with its approval of the use of predictive coding in the discovery process in Irish Bank Resolution Corporation Ltd. & Ors v. Quinn & Ors. In February 2016, Master Matthews helped Britain win the bronze when he issued the first British opinion, known as Pyrrho Investments Ltd. v. MWB Property Ltd., which approved the use of predictive coding in High Court proceedings, partly relying on Magistrate Judge Peck’s opinion in Da Silva Moore v. Publicis Groupe. Even more recently in May 2016, Britain had its first contested case regarding predictive coding, David Brown v. BCA Trading. These opinions are just the start of what we will see on the issue of predictive coding in years to come. Case law will continue to develop as many of the same concerns are being raised globally.

What’s Next on the Horizon?

As discussed by Lange and Stretton in their article, in the U.S. and U.K., judges will continue to interpret the nuances of parties’ predictive coding practices and it will not be long until other European and Asian countries formally join the predictive coding games. In the meantime, technology is evolving so legal professionals must stay vigilant to meet the expectations of demanding international clients when producing electronic documents in global litigations or investigations.

ICYMI: Ediscovery in China [Webinar]

Ediscovery in China

Kroll Ontrack recently presented the Ediscovery in China: Traditions, Rules and Customs You Need to Know webinar. In the webinar, which is now available on-demand, Kate Chan, Kroll Ontrack’s Regional Managing Director in APAC, discussed the following barriers and best practices for ediscovery projects with data in China.

The Implications of China’s Regulatory Framework

Unlike the United States, China does not have formal discovery practices in civil litigation, which presents initial contentions between these legal systems on opposite sides of the world. The Chinese government has several regulations that impose possible restrictions on gathering data in China for an investigation or litigation. The most impactful regulation is the State Secrets law. State secrets are broadly and vaguely defined by the Chinese government as “matters that have a vital bearing on state security and national interests and, as specified by legal procedure, are entrusted to a limited number of people for a given period of time.” Individuals are prohibited from sharing and transferring such secrets, complicating data collection, review and production practices, should any of such information be classified as a State Secret in an investigation or litigation.

Language and Cultural Challenges

Other ediscovery barriers in China revolve around language and culture: English is not the primary language in China, the Chinese are very formal in their communication style and there are many regional dialects in China, making searches and early data assessment difficult for English-speaking litigation professionals.

Work culture in China is very family-oriented, with the entire family prioritized above the needs of individual members, also known as familism. Because of this, many managers tend to hire their relatives and many businesses tend to be family-owned.

Further, litigation teams working in China need to understand the Chinese cultural phenomenon known as guanxi, which refers to personalized networks of influence and reciprocity between individuals and businesses. All of this makes examining data related to ediscovery challenging and unique.

Developing Economy

In addition to the regulations, language and cultural challenges, the Chinese economy is still developing. China’s legal system and corporate governance practices are less developed when compared to other countries, resulting in much reluctance toward, and unfamiliarity with, data collection and analysis activities associated with litigation. Manufacturing and production plants tend to be located in remote locations rather than in big cities, which means that litigation teams often have only one chance to obtain the needed data. Lastly, China still uses a great deal of paper documents with employees often mixing data between their personal and business computers.

Best Practices

With all the challenges that litigation teams may face when an ediscovery project crosses borders to China, these are some of helpful tips to keep in mind:

  • Get an expert well-versed with different Chinese-language dialects
  • Consider diverse data sources
  • Use local resources for collection
  • Consider a mobile ediscovery solution

Want to learn more? Download the webinar today!

6 Months of Case Law Under the New FRCP

Six months have passed since the December 1, 2015 amendments to the Federal Rules of Civil Procedure (FRCP) took effect. What has been the impact of the new rules on civil litigation and discovery?

In particular, Rule 26(b)(1) and Rule 37(e) have attracted a sizeable amount of jurisprudence, as both courts and parties grapple with the applications of these new rules. To aid today’s practitioner, Kroll Ontrack analyzed the most significant judicial opinions of the last six months relating to Rule 26(b)(1) and Rule 37(e).

How have the amendments impacted discovery? Download the FRCP case law digest.

Proportionality Reigns Supreme

In the first six months since the 2015 amendment to Rule 26(b)(1), courts have struggled with the removal of the “reasonably calculated” language, and the additional emphasis on proportionality. Pioneering lawsuits have fleshed out the most pressing questions such as what factors matter the most when arguing proportionality? In what way should a party object to discovery under the new rules? Looking at the totality of the case law, one new theme has emerged—there is no substitute for specificity. Both parties are required to state with specificity why they are requesting or objecting to discovery.

Safe Harbors for “Reasonable Steps”

In the past, organizations have been pressured to preserve massive amounts of ESI at tremendous expense. The 2015 amendments have attempted to require only “reasonable steps” be taken to preserve the information. But is it actually advancing adequate data preservation causes? What constitutes “reasonable steps” under the new FRCP amendments? If evidence was preserved and then lost, what level of intent is needed before a court will impose sanctions?

Each of these questions are addressed in Kroll Ontrack’s case summary digest, with the most relevant case law opinions highlighting the expectations from the courts in the first six months since the 2015 FRCP amendments. Download a copy of the FRCP case law digest by Kroll Ontrack, which not only summarizes key findings but also contains a circuit-by-circuit list of judicial opinions referencing FRCP amendments to Rule 26(b)(1) and Rule 37(e).

Still catching up on the 2015 amendments? Download a copy of Kroll Ontrack’s 2015 FRCP Amendments guidebook, which contains each of the December 1, 2015 amendments and full text of the Advisory Committee notes.

Get Ready for New Ediscovery Rules in Minnesota

The month of July ensures some much needed warmth in Minnesota after an offensively wintery spring, but July also brings an exciting new set of amendments to the Minnesota Rules of Civil Procedure. From July 1, 2013 onward, Minnesota lawyers are obligated to cooperate and be more upfront during the discovery process. In an effort to mirror the crux of the 2006 amendments to the Federal Rules of Civil Procedure (FRCP), electronic discovery and proportionality will be the focus of the new Minnesota Rules of Civil Procedure, due in no small part to the resounding plea from lawyers all over the state for the judicial enforcement of cost-effectiveness and manageability in civil litigation.

Particularly interesting is the new Rule 1, which explicitly addresses proportionality – a welcome step that actually goes above and beyond the FRCP. The specific mention of proportionality takes the wiggle room away from litigants tempted to play fiscal “chicken” with opposing counsel via discovery costs. It puts the onus on each party to work across the aisle and limit discovery to a practicable scope.

The most expansive change comes in Rule 16, by which Minnesota lawyers must make an earlier investment on tailored ediscovery plans. Lawyers must conduct ediscovery management with more effort than ever by way of compulsory initial disclosures related to custodians, data sources, litigation holds, scheduling, production format, and everything in between. A strict new timeline will be enforced – thirty days after the answer to the complaint, the discovery conference must take place, and fourteen days after that, the parties must file a discovery plan with the court. No longer will “Yep, we talked about ediscovery” end the story, as the court will now be more involved in early planning to ensure that the discovery beast stays tame. In fact, no discovery will be allowed until after the initial disclosures and scheduling order pass the court’s muster. In essence, early preparation and a strengthened call for cooperation are certainly the themes of the new rules in Minnesota state court.

Updates to the Minnesota Rules come at the perfect time, when high-level discussions are occurring about similarly strengthening the FRCP to reflect the growing need to address proportionality in litigation. All in all, the updates reflect the legal system moving forward on a path towards the “North Star” in ediscovery.

The text of the new Minnesota Rules of Civil Procedure can be found here.

Top 5 Ediscovery Case Summaries – April 2013

Read the very latest ediscovery case law summaries

Below are the top 5 ediscovery case law summaries for April, 2013.

Court Denies Motion to Compel Social Media Data
Potts v. Dollar Tree Stores, Inc., 2013 WL 1176504 (M.D. Tenn. March 20, 2013).

Insufficiently Detailed “Image Processing” Not Included in Taxable Costs
Taylor v. Mitre Corp., 2013 WL 588763 (E.D. Va. Feb. 13, 2013).

“Careless” Deletion of ESI Warrants Exclusion of Evidence, Adverse Inference
E.E.O.C. v. Ventura Corp, Ltd., 2013 WL 550550 (D.Puerto Rico Feb. 12, 2013).

Court Denies Motion for Protective Order, Cost-Shifting
Juster Acquisition Co., LLC v. N. Hudson Sewerage Auth., 2013 WL 541972 (D.N.J. Feb. 11, 2013).

Discovery Requests Outweighing Amount in Controversy are Unduly Burdensome
Conn. Gen. Life Ins. Co. v. Scheib, 2013 WL 485846 (S.D. Cal. Feb. 6, 2013).

To have the Top 5 Ediscovery case summaries sent directly to your inbox every month, subscribe to our newsletter: Ediscovery Rediscovered.

Cost-Shifting in the Era of Big Data

Ediscovery - Cost-shifting in the era of big data ediscovery

As children, we’re taught the importance of fair play. As adults, we often learn that “fairness” is a rather amorphous concept. In litigation specifically, what’s “fair” tends to vary greatly by context, circumstance, and the arguments of the individual asserting that something is (or isn’t) fair.

In the context of ediscovery, however, the Eastern District of Pennsylvania sent an important message to litigants in Vaughn v. L.A. Fitness: “[D]iscovery need not be perfect, but discovery must be fair.” In Vaughn, the court asserted that “[D]iscovery burdens should not force either party to succumb to a settlement that is based on the cost of litigation rather than the merits of the case” and ordered the plaintiffs to pay for additional discovery in a pre-class certification dispute.

Ediscovery – Cost-shifting Trends for Big Data

Although Vaughn’s holding applied specifically to pre-class certification discovery, the opinion follows a growing trend of courts increasingly turning to cost-shifting to more equitably distribute the cost of Electronically Stored InformationBig data cost-shifting: Cisco, the dawn of the zettabyte era (ESI) production between parties. Further, the notions advanced by Vaughn will likely continue to find footing as data volumes proliferate. Since the advent of the microprocessor in 1971, the volume of data has exploded. In 2012, the amount of global data reached approximately 2.8 zettabytes (ZB), and by 2020, the digital universe is expected to reach 40ZB—enough information to fill over a half trillion 32GB tablet computers. Naturally, as data volumes increase, so do the amounts of ESI subject to litigation, as well as the costs associated with production.

Although the likelihood of cost shifting in big data ediscovery is on the rise with big data, legal expertise and advocacy are still necessary. Not all arguments for cost-shifting are a slam dunk, and the presumption that the producing party pays remains. Parties requesting cost-shifting must bolster their arguments with sufficient facts and figures to prove that the traditional presumption would prove burdensome or inequitable. Otherwise, you might find yourself dejectedly (and perhaps mistakenly) clinging to the belief that life simply isn’t fair.

View the new Kroll Ontrack cost-shifting infographic.

Anticipating and Responding to Litigation

In today’s digital world, organizations must manage data in a manner that mitigates legal risk and possible sanctions for failure to safeguard and preserve potentially relevant electronically stored information (ESI). According to Kroll Ontrack’s Year in Review report, approximately 40 percent of all ediscovery cases in 2009 involved claims for sanctions against parties that allegedly failed to comply with discovery obligations. Of the cases involving a claim for sanctions, 66.67 percent addressed an alleged failure to properly preserve ESI. The growing body of statutory and common law regarding electronic discovery instructs litigants that the best defense against sanctions is to take proactive measures to fully comply with future discovery obligations. Corporations can act proactively to avoid spoliation by thoughtfully managing data in a manner that contemplates a swift and effective response.

Read more about best practices for preparation and response to ESI requests, and explore the proper roadmap for complying with preservation obligations. Visit today.