Live Blogging at LTNY: Session on Hot E-Discovery Trends

Created on January 31, 2012

Date/Time: 3:45 – 5:00 (EST), Tuesday, January 31, 2012
Participants: Honorable David J. Waxse, US District Court, District of Kansas; Alitia Faccone, Partner, McCarter & English; Meghan Podolny, Associate, Hunton & Williams; Moderator: Andrea Gibson, Director-Product Development, Kroll Ontrack
Session Description: News Flash! Exploring Hot eDiscovery Trends
In this session, a panel of experts discussed how e-discovery evolved over the past year and shared their views on some of the current hot topics, including potential changes to the Federal Rules of Civil Procedure and the impact of social media on e-discovery.
  • Potential changes to the Federal Rules of Civil Procedure are a hot topic right now because there is general consensus that e-discovery is causing litigation to be too expensive.  However, there is not clear consensus on whether rule changes are the best way to address this issue.
  • Judge Waxse said the two issues that come up most frequently when it comes to potential rule changes are preservation and cooperation.  Under the current rules, preservation obligations are quite vague and as a result are interpreted differently across the various courts.  This ambiguity has resulted in a general trend of over preservation.  Meanwhile, cooperation between parties in e-discovery, while preached vociferously by judges, is not explicitly mentioned in the Federal Rules of Civil Procedure and there is a push by some to have it be inserted.
  • Even though there is a lot of talk regarding rule changes right now, Judge Waxse thinks that it would probably take years for the rules to actually be modified.
  • The panel was in agreement that we don't need sweeping rule changes.  They also made the point that many litigants are not taking full enough advantage of the current rules.  For example, the proportionality rule should be used far more frequently than it is currently.
  • Another big issue right now is social media in e-discovery.  The panel was in agreement that there aren't a lot of easy answers when it comes to handling social media data.  Panelist Alitia Faccone said that while there may not be many easy answers, companies have to start addressing the issue now because social media is cropping up in more and more cases.
  • Panelist Meghan Podolny observed that the amount of risk that comes with social media varies greatly from company to company.  She said the first step to getting a handle on social media data is assessing how the organization is using social media, whether the information is likely to be requested in litigation.
  • While there isn't a standard blueprint for managing social media for e-discovery, the panelists agreed that at the very least there needs to be a company wide policy regarding social media that addresses such questions as: Who uses it? What is it used for? How long is information left up on the site?
  • The panel briefly touched on predictive coding, which you can read about in our past post on a session at LegalTech devoted entirely to that topic here.
E-Discovery Beat’s Key Takeaway
The session moderator, Andrea Gibson, astutely pointed out that hot e-discovery trends or topics are often born out of fear.  Nobody wants to be sanctioned.  Whether we like it or not, there is always going to be gray area in e-discovery.  The best strategy for staying on the straight and narrow is simply having a plan that accounts for the many intricacies of e-discovery.  Judges aren't expecting perfection only reasonableness. It's much easier for a party to show that reasonable steps were taken when they can point to a plan and show that they were being proactive in thinking about the various issues before they actually arise.