In Exterro's recent webcast, 2012 E-Discovery Case Law Review: The 3 Ps for 2013, Maura Grossman, Esq., former United States Magistrate Judge Ronald Hedges and Jeane Thomas, Esq.presented and discussed three important e-discovery themes from 2012: Predictive, proactive and process. They emphasized best practices for legal teams moving forward in 2013.
Following is a recap of the highlights from this informative and educational webcast:
Predictive: The growing acceptance of new predictive technologies (e.g. Predictive Coding)Case Discussed: (1) In re: Actos (Pioglitazone) Products Liability Litigation (W.D. La July 27, 2012); (2) Global Aerospace Inc., et al v. Landow Aviation, L.P. dba Dulles Jet Center, et al (Vir. Cir. Ct. April 23, 2012); (3) EOHB, Inc, et al v. HOL Holdings, LLC, C.A (Del. Ch. Oct. 15, 2012)
- Increased Efficiency and Cost Savings: Depending on the circumstances of the case, predictive technologies offers a staggering way to reduce review costs by 80% to 90% over manual review.
- Alignment with the Federal Rules of Civil Procedure (FRCP): Utilizing predictive technologies promotes Rule 1, securing the “just, speedy, and inexpensive determination of every action and proceeding," while complying with Rule 26(g), which requires that discovery is not unduly burdensome and is conducted after a reasonable inquiry.
- People, Process, Technology: In developing protocols surrounding predictive technologies, people, process and technology must all be taken into consideration. Legal teams must decide what technology to use, how to do so and by whom. This needs to include validation, quality control procedures and some transparency about the process behind the predictive technology.
- Uncertain Future: Court decisions in 2012 have approved predictive coding protocols, but the legal community is still awaiting a decision that has tested the protocols or that has produced results from the protocols.
Proactive: The importance of employing proactive techniques/strategies to make effective proportionality arguments and prevent sanctionsCases Discussed: (1) Multifeeder Tech, Inc. v. British Confectionery Co., Ltd. (D. Minn. Sept. 18, 2012); (2) EEOC v. McCormick & Schmick's Seafood Restaurants, Inc. (D. Md. Feb. 3, 2012)
- Don't Hide the Ball: The intentional hiding, deleting or modifying potentially relevant electronically stored information (ESI) will not be tolerated by the courts, and severe sanctions will await violating parties.
- Prove, Don't Just Ask: Parties need to do more than just assert that discovery requests are unduly burdensome or disproportionate. Consistently, parties have motioned the court for more narrowly tailored discovery requests without proof that an undue burden actually exists. Legal teams need to be proactive, create protocols and leverage technology that enables them to produce metrics to prove their claims.
- Defensibility Begins before Litigation Commences: For corporations, having a plan for when and how to respond to a preservation trigger is imperative to create defensibility in the e-discovery process. When an opposing party accuses wrongdoing (spoliation) surrounding the e-discovery process, in some cases the best defense is to document the process and the reasoning for why such decisions were made.
Process: The essential role of a formalized, documented process to maintain and prove defensibilityCases Discussed: (1) In Re Delta/AirTrain Baggage (N.D. Ga. Feb. 3, 2012); (2) Apple v. Samsung Electronics Co., Ltd. (N. Cal. July 24, 2012)
- Communication is Paramount: Breakdowns in e-discovery processes begin with miscommunications between inside counsel, business teams, outside counsel, e-discovery service providers and any other key stakeholders responding to the request. Clear lines of communication and documenting all communications are critical to creating a defensibility process.
- Don't Forget About Project Management: Legal teams are still practicing “ready, fire, aim" instead of “ready, aim, fire." Ad hoc processes, undefined leadership/supervision and the failure to conduct quality assurance checks continue to plague the e-discovery process. Legal teams should look to leverage project management principles, which can help prevent gaps in the process, while enabling the people involved to know what their responsibilities and obligations are.
- Courts Require Reasonableness, Not Perfection: Reasonableness requires (1) Identifying the right people with the right skill sets to implement, run and supervise your e-discovery program; (2) Implementing a detailed, unified process that relies on principles associated with proportionality and utilizes quality assurance measures; and (3) Leveraging technology that creates the repeatability, transparency and documentation necessary for e-discovery defensibility.
To watch the webcast in its entirety and learn more about these trends, please click here.
Mike Hamilton, J.D. is a Sr. E-Discovery Analyst at Exterro, Inc., focusing on educating Exterro customers, prospects and industry experts on how to solve e-discovery issues proactively with technology. His e-discovery knowledge, legal acumen and practical experience give him a valuable perspective on bridging the gap between IT and legal teams. You can find him on Google+, Twitter and Linkedin.