The Year in Review. Kroll Ontrack 2013

Transcription

1 The Year in Review Kroll Ontrack 2013

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6 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 18% 13% 23% 28% 18%

7 Search: Case Law Themes Although there were few landmark cases, many opinions re-emphasized key ediscovery issues that will remain prevalent. Preservation & Spoliation Different standards appeared for when the duty to preserve is triggered In re Pradaxa (Dabigatran Etexilate) Prods. Liab. Litig.; Gatto v. United Airlines Production Requests for production should not be overly broad, burdensome, or disproportionate to the scope of the matter Apple, Inc. v. Samsung

8 Search: Case Law Themes Page 2 Procedural Issues Search methodologies refined and analyzed with greater scrutiny must be reasonable In re Biomet M2a Magnum Hip Implant Prods. Liab. Litig. Sanctions Diverging opinions over the level of culpability required to justify sanctions Sekisui v. Hart; Herrmann v. Rain Link Costs Fees for predictive coding can be awarded to prevailing party Gabriel Techs. Corp v. Qualcomm

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11 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

12 To cull data To prioritize documents To check the team s work To review opposing production Other Source: edj Group s Q Predictive Coding Survey, February 2013, N = 34.

13 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

14 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, threading, etc) already exist in standalone PC solutions o Aggressive culling via keywords can have an impact on training in PC o Any search strategy must be well designed according to the matter at hand o The producing party has substantial deference in conducting its search

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16 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.

17 Total ESI Collected and Uploaded: The Case by Case The Portfolio Approach Approach The data from each case is is recollected once in and all subsequent in subsequent matters! matters! Case 1 Case 2 Case 3 Case 4 Case 5

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19 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. Propose Rules 26 and 37(e) have generated significant debate.

20 The Amendment Process Amending the Federal Rules of Civil Procedure is a time consuming process of formal comment and review involving a minimum of seven stages: 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 Publication and public comment Approval by the Standing Committee Supreme Court approval Initial consideration by the Advisory Committee Advisory considers public comments and gives final approval Judicial conference approval Congressional reviewrules take effect

21 The Amendment Process Where we are, and what s next: Rules Committee adopts the Package April 2013 Standing Committee approves the Package - June 2013 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 Step 1 Step 2 Step 3 Step 4 Step 5 Step 6 Step 7 Publication and public comment Approval by the Standing Committee Supreme Court approval Initial consideration by the Advisory Committee Advisory considers public comments and gives final approval Judicial conference approval Congressional reviewrules take effect

22 The proposal contains amendments to the following Rules: o Cooperation: Rule 1 o Proportionality: o Scope: Rule 26(b)(1) o Limits: Rules 30,31,33,34 & 36 o Discovery costs: Rule 26(c) o Preservation Planning: Rules 16 & 26(f) The proposal also contains a replacement Rule 37(e) to address Spoliation and Sanctions

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24 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

25 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)

26 What is BYOD? 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 THEN Work-related Devices NOW Personal Devices

27 SnapChat is an app that sends selfdestructing 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?

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29 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 #InternationalDataPrivacy Is data protection reform underway? o #FRCPchange Rulemaking efforts take another step forward

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