Top of mind: Four eDiscovery Trends to Watch in 2016
For years, issues relating to eDiscovery have been some of the biggest (and most expensive) challenges for parties involved in litigation. The ever changing, highly technical and complex nature of the world of eDiscovery continues to make it difficult for parties to navigate this aspect of the legal landscape. Here are a few of the trending topics and developments in eDiscovery for 2016:
Interpreting and Applying the Proportionality Language of FRCP 26(b)(1). Since the recent amendment to Federal Rule 26(b)(1) in late 2015 (which limits discovery to that which is “proportional to the needs of the case” with five factors for consideration), there has been widespread discussion of the need to clarify the application of the “proportionality” language of the new rule. In the short time since the rule change, dozens of judicial opinions have been written interpreting and applying the amended language. Some courts have noted that “proportionality” has long been a factor in determining the scope of discovery, and therefore there is no real change in the responsibilities of the parties or the courts. Other courts see the amendment as having emphasized proportionality over the other factors related to discoverability (perhaps even surpassing relevancy), and perhaps puts the burden of proving proportionality on the party seeking the discovery.
Preservation Sanctions and FRCP 37(e). Preservation of electronically stored information (ESI) is often burdensome and costly to litigants. Rule 37(e) was first introduced as a safe harbor from spoliation sanctions in the 2006 amendments, but there was a sense from many practitioners that the 2006 version of the rule did not provide enough protection to preserving parties and enough uniformity to describe the behavior that could get a party sanctioned. The Civil Rules Advisory Committee completely rewrote the rule for 2015 and limited its application to the loss of ESI. In cases where requesting parties are prejudiced because ESI was lost, the court may order measures no greater than necessary to cure the prejudice. Further, in cases where the party that lost the information “acted with the intent to deprive another party of the information’s use in the litigation,” the Court may impose more serious sanctions like an adverse inference or case dismissal.
Predictive Coding and Analytics. With improving technologies and software capabilities, computer-assisted review continues to offer faster, cheaper and more accurate ways of screening documents for responsiveness and privilege, thereby reducing the cost of litigation. While a few parties might still argue that this is unreliable and unproven technology, most courts have embraced computer-assisted review as an effective and efficient tool for eDiscovery purposes. Some courts have even taken an active role in guiding the use of technology assisted reviews, setting protocol for training the computers and quality assessments along the way. With the increasing data volumes that most organizations are experiencing, computer-assisted review is moving from a luxury to a necessity.
Bring Your Own Device (BYOD) v. Company Owned, Personally Enabled (COPE). This issue affects every company who has employees using mobile devices for both personal and work purposes. While BYOD raises many security and manageability concerns, COPE may be financially infeasible. Some of the key policy issues that companies face are: What employee policies can be put into place to ensure the integrity of the data is secured in a BYOD situation? Who owns the device (and who owns the data on the device)? What data can be stored on the device? What data can be shared using the device? How is the device protected? For companies choosing a COPE policy: What is the acceptable use of the mobile device (and can you control it)? Who owns the data on the device? What happens to the device (and the data) if the employee leaves the company? While each company requires a policy specifically tailored to its needs and capabilities, sample HR and IT policies can be useful for guidance.