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The Year in ReviewKroll Ontrack 2013
ACEDS Membership Benefits Training, Resources and Networking for the
E-Discovery Community
Join Today! aceds.org/join or Call ACEDS Member Services 786-517-2701
Exclusive News and Analysis Weekly Web Seminars Podcasts On-Demand Training Networking
Resources Jobs Board & Career Center bits + bytes Newsletter CEDS Certification And Much More!
“ACEDS provides an excellent, much needed forum… to train, network and stay current on critical information.” Kimarie Stratos, General Counsel, Memorial Health Systems, Ft. Lauderdale
Some Vital Topics We Cover
Computer Assisted Review
International E-Discovery
Social Media
Cloud-Based Discovery
E-Discovery Malpractice
Workplace Privacy
State E-Discovery Rules
And Many More!
CRUCIAL TRAINING THROUGH
ACEDS WEB SEMINARS
aceds.org/join
@M
ichele
CSLa
nge
Michele Lange
Director, Marketing
@KrollOntrack• Nationally-recognized expert in ediscovery, computer
forensics and legal technologies• Engages in industry relations, conducts legal and
market research to drive Kroll Ontrack’s legal technology product and service offerings
• Assists clients with integrating case strategy, from ESI preservation to litigation tactics
• Co-authored the ABA book “Electronic Evidence and Discovery: What Every Lawyer Should Know”
@Philip
Favro
Phil Favro
Independent Litigation Counsel
• Recognized industry expert in ediscovery, information governance, and data protection
• Has advised technology companies and other enterprises regarding complex business disputes
• Written over 50 byline articles and four law review pieces that have been published by top-flight publications such as the ACC Docket, Law Technology News, and the Michigan State Law Review
The #EDiscovery Newsfeed2013 Case Law BlogTrending in 2013
Looking Ahead: Trends of 2014
Headlin
es o
f 2013
New
sfeed
2013 Case Law BlogTrending in 2013
#Predictive Coding#Multi-Matter Management
#FRCP Amendments#Social MediaLooking Ahead: Trends in
2014
Case
Law
Blo
g
theedisco
veryb
log.co
m
In 2013, Kroll Ontrack summarized 61 salient ediscovery opinions—apportioned by topic as follows:
#Preservation & Spoliation (28%) of ESI, including when the duty to preserve is triggered
#Production (23%) of ESI for discovery disputes and the methods used
#Sanctions (18%) for spoliation, production disputes and noncompliance with court orders
#Procedural Issues (18%) such as search protocols, cooperation and privilege
#Costs (13%) such as shifting and taxation costs
13%
28%
18%
23%
18%
Case Law ThemesAlthough there were few “landmark” cases, many opinions re-emphasized key ediscovery issues that will remain prevalent.
Search:
Preservation & Spoliation Different standards appeared for when the duty to preserve is triggeredIn re Pradaxa (Dabigatran Etexilate) Prods. Liab. Litig.; Gatto v. United Airlines
ProductionRequests for production should not be overly broad, burdensome, or disproportionate to the scope of the matterApple, Inc. v. Samsung
Case Law ThemesSearch:
Procedural IssuesSearch methodologies refined and analyzed with greater scrutiny—must be reasonableIn re Biomet M2a Magnum Hip Implant Prods. Liab. Litig.
SanctionsDiverging opinions over the level of culpability required to justify sanctionsSekisui v. Hart; Herrmann v. Rain Link
CostsFees for predictive coding can be awarded to prevailing partyGabriel Techs. Corp v. Qualcomm
Page 2
Case Law Trends, 2008-2013
2013: The Year in EDiscovery2013 went “back to basics” and
refined predictive coding, social
media and multi-matter management
#Predictive Coding
#Pre
dictive
Codin
g
Who to Follow Refresh
CAARM @Computer-Assisted Review Reference
Model
“Leveraging CAR can maximize efficiency…”
View more suggestions
The judiciary has accepted it, but when should predictive coding be used as part of a search methodology?
o Predictive coding is no longer relegated to use in large matters
o It is quickly emerging as an important tool for EDA
The d
ata
on
pre
dic
tive
codin
g
To cull data To prioritize documents
To check the team’s work
To review opposing production
Other
ED
A +
pre
dictive
codin
g
o Both EDA and predictive coding are keys to reducing costs and maximizing ediscovery efficiencies
o Predictive coding solutions are often viewed as separate tools
o Some practitioners now employ predictive coding at various stages of the EDRM workflow
o Predictive coding often performs the analysis which is imperative to the EDA process
o Predictive coding is a complimentary tool rather than a standalone solution
ED
A +
pre
dic
tive
co
din
g
o It’s not that crazy
o EDA tools let you learn more about your data—so does PC
o Many other tools (de-duplication, email threading, etc) already exist in standalone “PC solutions”
oAggressive culling via keywords can have an impact on training in PC
oAny search strategy must be well designed according to the matter at hand
oThe producing party has substantial deference in conducting its search
Plaintiffs argued: the defendant should have used PC on the whole 19.5 million document corpus; the keywords tainted the training. We want joint review of training documents
Court held: defendant’s search was reasonable
In r
e B
iom
et
Defendant’s search strategy:
3 million documents
19.5 million documents
Production
Keyword
Search
Predictive Coding
#Multi-Matter Management
#M
ulti-M
atte
r
Managem
ent
According to the RAND Corp., companies spend $18,000 per document to collect, process, review and produce a gigabyte of material.
Matters with overlapping custodians, documents, coding decisions and metadata from earlier matters can be leveraged for cost savings.
Who to Follow Refresh
EDiscovery.com @EDiscovery.com
“We turn ediscovery from an Art to a
Science…”
View more suggestions
The Portfolio Approach
Case 1 Case 2 Case 3 Case 4 Case 5
The data from each case is recollected in all subsequent matters!
Total ESI Collected and
Uploaded:The “Case by Case”
Approach
The data from each case is collected once and reused in subsequent matters!
Case 1 Case 2 Case 3 Case 4 Case 5
#FRCP Amendments
#FR
CP
Am
endm
ents
The Amendment efforts took a big step forward.
The Committee on Rules of Practice and Procedure approved proposals for a public comment period on June 3.
Proposed Rules 26 and 37(e) have generated significant debate.
Who to Follow Refresh
Federal Rules of Civ. Pro. @FRCP
“A public comment period…”
View more suggestions
The Amendment ProcessAmending the Federal Rules of Civil Procedure is a time consuming process of formal comment and review involving a minimum of seven stages:
Step 1
Step 2
Step 3
Step 4
Step 5
Step 6
Step 7
Initial consideration by
the Advisory Committee
Publication and public comment
Advisory considers public comments and gives final
approval
Approval by the Standing Committee
Judicial conference approval
Supreme Court approval
Congressional review- rules take
effect
From start to finish, it can take two to five years for a suggestion to be enacted
as a rule!
Step 1
Step 2
Step 3
Step 4
Step 5
Step 6
Step 7
Initial consideration by
the Advisory Committee
Advisory considers public comments and gives final
approval
Approval by the Standing Committee
Judicial conference approval
Supreme Court approval
Congressional review- rules take
effect
Publication and public comment
… The Package released to the bench and bar for public comment
on August 15, 2013, with public hearings on November 7, 2013,
January 9, 2014, and early February 2014
Standing Committee
approves the Package - June
2013
Rules Committee adopts the
Package – April 2013
The Amendment ProcessWhere we are, and what’s next:
Impetu
s fo
r C
hange
The 2006 Federal Rules are silent on numerous issues, such as:
o The scope or onset of preservation obligations
o Guidance on imposing sanctions for violating duty to preserve
o Proportionality and discovery costs
Result: Issues addressed via case law
o Circuit splits on preservation and sanctions
o Continuously increasing costs as organizations try to preserve data without clear rules
o Problem exacerbated by data proliferation and rapidly evolving technologies
The 2
013 P
roposa
ls
ADVISORY COMMITTEE ONCIVIL RULES& COMMENT ON RULES OF PRACTICE AND PROCEDURE
The proposal contains amendments to the following Rules:
oCooperation: Rule 1
oProportionality:
o Scope: Rule 26(b)(1)
o Limits: Rules 30,31,33,34 & 36
oDiscovery costs: Rule 26(c)
oPreservation Planning: Rules 16 & 26(f)
The proposal also contains a replacement Rule 37(e) to address Spoliation and Sanctions
Propose
d R
ule
26
A party’s ability to “obtain discovery” is now clearly conditioned on proportionality
o Plaintiff’s Pointo This sends a message to courts that they can deny
discovery and will breed early motion practice
o This will present a substantial obstacle to individual plaintiffs attempting to assert a claim
o Counterpointo These minor changes will not shift the balance of
discovery because these factors already appear in the Federal Rules
o Any added protection this new wording presumptively offers already exists in our rules in the form of certifying discovery disclosures under Rule 26(g)
The rule moves proportionality
factors of Rule 26(b)(2)(C) to Rule
26(1)
Propose
d R
ule
37(e
)
Removes the traditional verbiage of the ‘safe harbor’o Instead, if any party fails to preserve
information in “anticipation or conduct of litigation,” a court may issue basic sanctions
o However, if a court finds “substantial prejudice” plus bad faith or willfulness, more severe sanctions become available
o More potent sanctions are also unlocked where a court finds that that spoliation “irreparably deprived a party of any meaningful opportunity to present or defend against the claims in the litigation.”
If the draft Rule 37(e) went into
effect today, it would overrule
Sekisui v. Hart
Sta
te
ED
iscove
ry
Rule
sCheck out the Kroll Ontrack
Ediscovery rules & statutes
interactive map!
http://www.ediscovery.com/pulse/frcp-
rules-map/
#Social Media
#Socia
l Media
A plethora of issues have risen from social media, including:
o When the duty to preserve is triggered – and if there is a duty
o How BYOD at the workplace alters litigation
o How the workplace can manage personal accounts
Who to Follow Refresh
Twitter @Twitter
“Going Public!”
View more suggestions
Disco
vera
bility
of S
ocia
l Media
Do parties have a duty to preserve data on social media accounts?
oPublic social media posts are generally discoverable (Keller v. National Farmers Union Property & Cas. Co.)
oAbsent a sufficient showing of relevance, courts will not order discovery of social media (Potts v. Dollar Tree Stores, Inc.)
oBut courts may sanction for spoliation of relevant social media (Gatto v. United Air Lines, Inc)
The rules differ when a personal account
is used for work: one court just sanctioned
for destruction of such evidence.
(P.R. Tel. Co. v. San Juan Cable LLC)
“Refers to employees taking their own personal device to work, whether laptop,
smartphone or tablet, in order to interface to the corporate network.”
- Pcmag.com encyclopedia
What is BYOD?
Bri
ng Y
our
Ow
n
Devi
ce
Work-related Devices Personal Devices
THEN
NOW
Honeyb
ake
d
Ham
o In late 2012, the court in E.E.O.C. v. Original Honeybaked Ham Co. of Georgia ordered production of data on the plaintiff’s social media sites
o Bring your own device (BYOD) is spreading: half of all employers will require employees to provide their own technology by 2017 (Gartner)
o Just as documents relevant to a lawsuit are subject to discovery, so also are relevant documents in cyberspace
o You may have a duty to preserve relevant social media
Proble
ms w
ith
SnapC
hat?
SnapChat is an app that sends self-destructing photos
o Are these “snaps” discoverable?
oThe metadata of such “snaps” still exists after the “self-destruct” but may be too burdensome to retrieve
o What about when a party purposefully sends “snaps” to avoid creating evidence? Would this create a culpable mind?
SnapChat transmits over 150
million self-destructing photos
daily
Looking Ahead: EDiscovery in 2014
Possib
le Tre
nds
in 2
014
o #proportionality - Increased objections to/denials of discovery on these grounds
o #efficiency - Advanced analysis and filtering tools will keep decreasing source GBs and GBs produced
o #rule26(g) – Following Branhaven v. Beeftek, more courts will cite this rule to impose sanctions for sloppy discovery
o #FRCPchange – Rulemaking efforts take another step forward
o #InternationalDataPrivacy – International data protection laws are amended
o #CostConcerns – more clarification from judiciary on language for 28 U.S.C. § 1920?