NATIONWIDE: An Introduction to USA – Nationwide eDiscovery
Over the last 20 years, there has been a growing recognition that eDiscovery is a specialty area where inexperienced lawyers cannot be confidently dispatched to provide the sophisticated advice and counsel clients need. Today, many parties frequently involved in litigation are developing internal capabilities and moving towards engagement of 'national discovery counsel' who can provide agile and consistent guidance, and eliminate the incongruent effects resulting from different firms each doing discovery their own way. At the same time, astute counsel representing parties seeking discovery have developed more sophisticated and nuanced approaches to target discovery in proportional ways to avoid needless disputes and move cases forward.
Looking forward, utilization of top-tier eDiscovery counsel is more critical than ever. The realities of a remote workforce (and distributed data) have hit practically every industry in the COVID-19 era, and the potential ramifications in terms of identifying, retrieving, and producing data and documents from new and varied sources and devices are just beginning to be seen. In addition, the economic realities of a global recession should redouble the need for clients (both plaintiffs and defendants) to find experienced eDiscovery counsel who can provide strategic guidance and effective advocacy in litigations and investigation. This approach will reduce costs and risks while maximizing opportunities to advance the successful resolution of matters.
Existing and Emerging Legal Challenges Impacting eDiscovery
Many of the emerging trends below will impact how individuals, businesses and law firms approach eDiscovery and the future development and range of this practice area.
Scope of Relevance Challenges and Productions
Requesting and producing parties often disagree about where to draw the lines of relevance. New tensions arise, however, when parties and courts consider how relevance will be determined in the context of large-scale document reviews, and whether or not objectively irrelevant information must be produced. For example, while many courts allow producing parties to review documents for relevance prior to production, other courts and investigative bodies recently have demanded, regardless of any independent assessment of relevance, that information be produced simply because it is in a particular location or it is responsive to one or more 'keywords'. These divergent approaches present considerable challenges for both producing and requesting parties. Indeed, the magnitude of the dispute is demonstrated by the fact that a dispute regarding mandated keyword productions was recently raised to the United States Supreme Court in certiorari petitions and amicus curiae briefs filed in In re Activis Holdco U.S., Inc. At the time of writing, practitioners are awaiting a determination by the Supreme Court as to whether it will address the issue or whether the underlying issues will continue to evolve in the lower courts.
Conceptual Challenges of Applying Traditional 'Document' Concepts to Electronically Stored Information
Many lawyers and courts still think of electronically stored information as having paper analogues. Unfortunately, the reality is that much of today’s information is generated and stored in ways where there is no hard-copy equivalent. Whether it is a structured data platform with multiple relational tables, or a 'modern attachment' in Microsoft’s Office 365 environment, the means by which these data can be retained, retrieved and produced is significantly different than pulling a paper document from a file folder. Accordingly, to adequately represent their clients, counsel must stay abreast of existing and emerging technologies to understand how to satisfy the legal obligations that apply to these new data environments.
The 2015 Amendments to the Federal Rules of Civil Procedure were noted for their re-emphasis of proportionality in assessing the value and scope of discovery efforts. State courts have largely, but not wholly, followed suit, such as the Texas Supreme Court’s 2017 precedent-setting decision in In re State Farm Lloyds. Application of proportionality in a case is often an issue that requires skilled counsel who can understand and explain the intersection of technical facts and the law.
'Possession, Custody or Control' Issues
The continued explosion of cloud-based platforms, along with the increasingly interconnected global web of information and corporate entities, will continue to strain the traditional 'possession, custody or control' analysis that dictates how far an entity must go to identify, preserve, retrieve, review and produce information in an investigation or litigation. Adept counsel will identify and navigate these issues early on in matters.
The volume of data involved in investigations and litigation, combined with new technologies that individuals use to communicate, store and retrieve data, create substantial challenges for entities that need to withhold documents, in whole or in part, from discovery based upon privilege or other protection. The traditional document-by-document logging is increasingly impracticable and costly, yet many counsel still expect that these past practices will suffice. The number of disputes addressing allegedly deficient privilege logs or claims—some with significant case consequences—continue to increase. Quickly identifying matters where early discussion and alternative approaches can ensure the proper identification and withholding of documents, along with an adequate mechanism to challenge claims that are material and legitimately in dispute, will reduce risk and costs for all parties.
Federal and state courts are taking an increasingly restrictive view of confidentiality claims in both discovery and sealing court files. Accordingly, counsel must work with clients to ensure that there is a common and sufficient understanding of trade secrets and other confidential information at issue. Also imperative is the identification of a game plan to marshal evidence and arguments for or against such claims, as they arise in matters.
Artificial Intelligence, Technology Assisted Review, and Search/Retrieval
The next several years will continue to be marked by advances in, and disputes regarding, the application of technologies to various aspects of litigation and investigation decision-making. This includes the identification of relevant documents, as well as subsets, such as privileged or confidential documents. Counsel need to be armed with abundant competence to understand the consequences of agreements regarding the application of these technologies, and the means by which to validate results. Equally important is the ability to persuasively educate and advocate with respect to these issues.
Disparity Between Federal and State Rules
Although the Federal Rules of Civil Procedure underwent significant amendments in 2015 regarding discovery issues, states have been slow to adopt new rules, and even for those states adopting new rules, they have not followed the federal rules exactly. Counsel need to be cognizant of these differences and aware of local rules and practices that can significantly impact eDiscovery practice.
Interrelationship with other Areas of Information Law
eDiscovery is one aspect of the broader area of 'Information Law,' which addresses the intersection of different legal constructs with information wherever stored. Other aspects of Information Law include Information Governance, Data Privacy and Cybersecurity. Counsel should have a holistic understanding of the intersection of eDiscovery with these other areas as there are often overlapping laws, rules and other considerations.