NATIONWIDE: An Introduction to E-Discovery & Information Governance

Nationwide: An Introduction to eDiscovery and Information Governance 

Introduction 

Handling discovery of electronically stored information (ESI) is complex and riddled with risk, particularly in complex civil litigation and governmental investigations. Even large, global law firms with highly qualified attorneys struggle and too often fail to ensure that their clients are able to fulfill the demands and obligations imposed upon them by opposing parties and courts.

Instances of ESI discovery going “sideways” are common. The examples are many of large companies, with sophisticated legal departments and represented by prestigious law firms, nevertheless becoming mired in discovery difficulties – even devastating sanctions – because of failures to adequately preserve relevant information and/or timely produce the responsive ESI due to various process failures.

Likewise, the emergence of generative artificial intelligence (AI) applications in the mainstream (eg, ChatGPT-4/ChatGPT, Bard, etc) has accelerated commercial applications that will have widespread impacts on discovery, both in terms of how applications can be used in the discovery process, and how discovery will now need to address all the components of generative AI deployments that may be involved, directly or indirectly, in liability or risk situations. In this world, it is imperative to understand the intersection of data science and the law.

The assistance of top-tier eDiscovery counsel is therefore more critical than ever. Counsel with this expertise should be brought in when a party faces challenges in meeting its production obligations. It is also imperative to involve experienced and skilled eDiscovery counsel early in the case before taking paths that lead to later difficulties. Such counsel can help parties develop and implement defensible processes for legal holds and data disposition that avoid the many downstream impacts of excessive retention of ESI.

Unfortunately, cases continue to reflect that many litigators continue to rely on traditional approaches that are no longer viable in the context of complex environments that include the use of personal devices, texts, chats, instant messages, collaboration applications (eg, Slack, Teams), as well as email and ever-increasing volumes of all types of ESI. For example, relying on legal hold notices alone for preservation, and on the use of search terms and linear review for document productions and privilege logging, increasingly lead to significant difficulties later. Skilled eDiscovery counsel develop more sophisticated and nuanced approaches – including using analytics and technology-assisted review – to handle discovery in proportional ways.

Existing and Emerging Challenges Impacting eDiscovery

Preservation challenges  

Parties and their counsel are generally aware of the need to preserve information relevant to litigation or investigations, and many companies have established processes and personnel to manage legal holds. Yet, preservation issues continue to arise for individuals and companies, particularly concerning sources of data outside of email. On the one hand, failures to preserve relevant ESI on mobile devices and from texting, instant messaging, and chat applications continue to generate a large portion of sanctions decisions. On the other hand, excessive preservation is also an issue (e.g., some companies choosing a “save everything” approach that creates downstream problems with respect to system capacities and an inability to cycle backup media) and exacerbates the problems associated with high data volumes that must be collected, searched, and reviewed for future litigation.

ESI protocols  

It has become a common practice for counsel to enter what is known as an “ESI protocol”, ie, an agreement of the parties entered as a court order prescribing the process for production of ESI. Whether ESI protocols are beneficial for parties – and whether they would be in a better position without departing from the rules of civil procedure – is increasingly coming into question. Producing parties must be careful not to agree to provisions that, although seemingly innocent, operate as a significant relinquishment of rights under the rules or constraints on the practical flexibility required to meet discovery obligations. Requesting parties likewise should be mindful of the benefits of an iterative approach.

Use of new technologies in search and review

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 such as technology assisted review based on artificial intelligence and machine learning – and know how to properly use them – to satisfy their discovery obligations in these new information environments.

Proportionality challenges  

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. 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 to best advocate for proportional discovery.

“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 in matters. Complicating matters, courts are inconsistently applying conflicting “legal right” and “practical ability” standards to determine whether a party has “control” over documents and, therefore, corresponding duties to preserve and produce them.

Privilege challenges  

The volume of data involved in investigations and litigation (combined with new technologies that individuals use to communicate, store, and retrieve data) creates 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 these past practices to suffice. The number of disputes addressing allegedly deficient privilege logs or claims – some with significant case consequences – continues to increase. Identifying areas where early discussion and alternative approaches can ensure the proper and efficient identification and withholding of privileged documents can significantly reduce risk and costs.

Confidentiality challenges  

Courts are taking an increasingly restrictive view of confidentiality claims in both discovery and sealing court files. Counsel must work with clients to ensure a common and sufficient understanding of trade secrets and other confidential information at issue. Also imperative is developing a game plan to marshal evidence and arguments supporting such claims as they arise – including at trial – to ensure that trade secrets and other confidential information remain protected from public disclosure.

Interrelationship with other areas of information law

eDiscovery is one aspect of the broader area of “Information Law,” which addresses the intersection of legal requirements and data. 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.