USA - NATIONWIDE: An Introduction to E-Discovery & Information Governance
Introduction
Handling the discovery of electronically stored information (“ESI”) is complex and can involve tremendous 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 fulfil their legal obligations with respect to the preservation and production of relevant information and the discovery demands that opposing parties and courts impose upon them.
Instances of ESI discovery going “sideways” are common. Large companies, with sophisticated legal departments and represented by prestigious law firms, nevertheless have become mired in discovery difficulties and even devastating sanctions. These difficulties often result from process errors that lead to failures to adequately preserve relevant information and/or to timely produce responsive ESI.
Likewise, the emergence of collaboration platforms (eg, Slack and Microsoft Teams) as a primary means of communication and work, and generative artificial intelligence (“GenAI”) applications, are having widespread impact on discovery in terms of sources of discoverable ESI, complexity, and volumes of data. In this world, it is imperative that counsel understand the intersection of information technology, 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 early in a case before taking paths that lead to later difficulties, and especially when an organisation faces challenges in meeting its production obligations. Such counsel can also help organisations develop and implement defensible processes for legal holds and data disposition that avoid the many downstream impacts of excessive retention of ESI.
Unfortunately, many litigators continue to rely on traditional approaches that are no longer viable in the context of complex environments that include the use of mobile devices, texts, chats, instant messages, ephemeral messaging, collaboration applications, 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 (“TAR”)—to handle discovery in proportional ways.
Existing and Emerging Challenges Impacting eDiscovery
Preservation challenges
Organisations 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, 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 (eg, some companies choosing a “save everything” approach that creates downstream problems with system capacities, an inability to cycle backup media, and greater privacy and data security exposure) 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 handling of ESI in discovery, from preservation to production. 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.
New technologies
Many lawyers and courts still think of ESI 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-copied equivalent. Whether it is a structured data platform with multiple relational tables or a hyperlinked document in Microsoft’s Teams or Office 365 environment, the means by which this data can be retained, retrieved, and produced is significantly different than pulling a paper document from a file folder. To adequately represent their clients, counsel must stay abreast of existing and emerging technologies both as sources of information and as tools for processing, searching, and reviewing collected data, such as TAR based on artificial intelligence and machine learning, and know how to properly use such technologies to satisfy their discovery obligations. Counsel must also be able to explain these technologies to courts and to articulate their discovery-relevant features.
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 mostly, but not entirely, 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 transition to 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 protections. The traditional document-by-document logging is increasingly impracticable and costly, yet many counsel (and courts) 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, and improved quality in privilege logs, can significantly reduce risk and costs.
Confidentiality challenges
Courts are taking an increasingly restrictive view of confidentiality claims in both discovery and in 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.