By Tim Rollins
Reporters Recap Top E-Discovery Storylines from 2017
One of the day’s most anticipated webcasts was our recap of the top e-discovery news stories with Ethan Bowers of Bloomberg Law, Joe Patrice of Above the Law, and Zach Warren of LegalTech News. In their discussion, Ethan, Joe, and Zach managed to cover a lot of ground, with the following highlights:
- In the courts, key themes of 2017 were proportionality and cooperation. The courts have less patience and tolerance for blanket or boilerplate requests, incomplete or poorly implemented legal holds, and inability of opposing counsel to cooperate. This manifested both in sanctions and in sharply worded decisions. These decisions have implications for companies that, in Ethan Bowers’s opinion, should be “quite scary.” For example, in Goodyear Tire and Rubber Co. v. Haegar, the Supreme Court levied a $2.7 million sanction against Goodyear—the plaintiff’s entire legal costs—because of its false response to discovery requests.
- In the industry, 2017 was a year of normalization compared to earlier claims by companies to revolutionize e-discovery. An influx of venture capital fueled continuing mergers and acquisitions, yielding ongoing industry consolidation. Joe Patrice observed, “Most clients want a single e-discovery suite,” rather than a series of solutions. Seamless, efficient workflows are the order of the day.
- In the news, security and the cloud continued to be big themes. Companies ranging from Wells Fargo to Equifax to Uber all stumbled as e-discovery issues compounded public relations troubles arising from security breaches. Counsel can’t just outsource e-discovery and look down at the work as a “janitorial” task; they need to understand what’s going on and how it’s happening, especially since ignorance (whether intentional or simple oversight) can put you on the quick path to sanctions.
- Artificial intelligence continues to progress, but as in the industry news, it’s not revolutionizing discovery so much as another tool in your kit. Much like predictive coding’s applications in search, it can supplement legal teams’ e-discovery efforts, not replace them, at this point.
Each of the panelists offered their thoughts for issues that would be important in 2018, as well. They included the need for legal teams to understand and be involved with discovery processes; to cooperate with opposing counsel or risk court sanctions; and to be aware of what’s happening during data transfers, as the law is in flux on these issues, especially in terms of GDPR’s rollout in May.
We’ve recapped the issues here, but if you’re curious to have a complete review of the year in e-discovery news, you’ll definitely want to listen to the on-demand webcast, available on Exterro’s Webcast Resources page on Monday, 12/4/17!