E-Discovery Year in Review, Part 1

December 30, 2014 Jennifer Latzo

As Oscar Wilde suggested, life often imitates art. Indeed, this year, e-discovery imitated art: lyrics from a surprising number of the top 14 songs of 2014 (according to iTunes downloads) eerily match some of this year’s most significant developments.

#14 Timber by Pitbull featuring Ke$ha
“The bigger they are, the harder they fall.”

Many high-profile data breaches occurred in 2014, such as those at Sony and Home Depot. As a result, organizations are redoubling their efforts to prevent cyberattacks by aligning people, processes, and technology to maximize protection. Similarly, they are ensuring that their third-party providers follow robust, security practices that are tested and audited.

#13 Pompeii by Bastille
“But if you close your eyes, does it almost feel like nothing changed at all?
And if you close your eyes, does it almost feel like you’ve been here before?
How am I gonna be an optimist about this?”

Arguably, the biggest headline from 2014 was the proposed amendments to the Federal Rules of Civil Procedure, which are currently pending before the U.S. Supreme Court. If the Court adopts the rules before May 1, 2015, and if Congress does not intervene, then the amendments will go into effect on December 1, 2015. Despite praise for the changes to Rule 26(b)(1), which will now incorporate proportionality, and Rule 37(e), which seeks to create uniformity among courts in imposing spoliation sanctions, the potential effects of the changes remain contentious. As parties will be reluctant to be the test cases for the new rules, it is unlikely that the amendments will have a significant impact on organizations’ hefty preservation burdens in the near term.

#12 Shake It Off by Taylor Swift
“I make the moves up as I go (moves up as I go).”

An ad hoc approach to discovery is fraught with risk, as the parties in Progressive Casualty Insurance v. Delaney learned. Here, the court rejected the plaintiff’s attempt to switch from manual review to technology-assisted review (TAR) once it recognized the cost of having lawyers examine each document. The lesson? Parties cannot agree to a discovery protocol and then unilaterally change tactics midway through discovery; instead, they should spend more time up front planning their strategy in order to gain a complete understanding of the potential risks and costs of their approach.

#10 Rude by MAGIC!
“Why you gotta be so rude?”

The proposed amendments to the federal rules emphasize cooperation, but parties should observe that many courts already rely on the concept. For example, in Boston Scientific v. Lee, the court described the lack of cooperation as a “recurring problem in civil discovery”:

A party demands the sun, moon and stars in a document request or interrogatory, refusing to give even a little bit. The meet and confer required by a court in advance of a motion is perfunctory at best, with no compromise whatsoever. But when the parties appear before the court, the recalcitrant party possesses newfound flexibility and willingness to compromise.

Think Eddie Haskell singing the Beaver’s praises to June Cleaver, only moments after giving him the business in private.

#8 Let It Go by Idina Menzel
“It’s time to see what I can do, to test the limits and break through.”

In 2014, corporate counsel increasingly explored new ways to lower e-discovery costs. Many turned to providers who offer managed services as an approach for maximizing resource allocation and expertise, improving budgeting and quickly scaling up and down while still maintaining strategic oversight over matters.

In our next blog, we’ll wrap up our year-end summary with the top hits and e-discovery themes of the year.

Rachel Teisch is vice president, marketing at Conduent. She can be reached at info@conduent.com.

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