E-Discovery Year in Review, Part 2

In our last blog, we explored how popular song lyrics reflected some of the salient themes in e-discovery during 2014. In this blog, we’ll conclude our assessment with the most popular songs—and some of the most important discovery themes—of the year.

#7 All About That Bass by Meghan Trainor
“I’ve got all the right junk in all the right places.”

Parties that stockpile data would be wise to implement an information governance initiative to rid their repositories of records that no longer serve a business or legal purpose. By doing so, they will lower the costs of e-discovery and limit the potential for the loss or disclosure of personally identifiable information or other sensitive data. In 2014, many organizations recognized the value of analytics tools to organize their information, such as deduplication, concept clustering, e-mail redundancy, relationship analysis, and technology-assisted review (TAR).

#5 Fancy by Iggy Azalea
“I’m in the fast lane from L.A. to Tokyo”

E-discovery is currently as hot an issue abroad as it is in the U.S. One of the most significant developments abroad in 2014 was Hong Kong’s implementation of Practice Direction SL 1.2, “Pilot Scheme for Discovery and Provision of Electronically Stored Documents in Cases in the Commercial List,” which establishes a framework for “reasonable, proportionate and economical” e-discovery. And, as we reported earlier this year, the International Organization for Standardization (ISO) is developing an international e-discovery standard ISO/IEC WD 27050.

#3 Dark Horse by Katy Perry
“Once you’re mine, there’s no going back.”

One case from 2014 highlights the perils of failing to conduct an adequate privilege review. In First Technology Capital, Inc. v. JPMorgan Chase Bank, the plaintiff turned over a supplemental discovery production of 1,500 documents. When the defendant notified the plaintiff that 45 of those documents were privileged, the plaintiff attempted to recover them under Federal Rule of Evidence 502(b). The court refused the plaintiff’s request because Rule 502(b) requires the party requesting the return of privileged documents to demonstrate that it took “reasonable steps” to prevent the disclosure. Here, the “review economy” of plaintiff’s counsel, who spent only 4.1 hours conducting privilege review, failed to meet this standard. This case demonstrates the importance of parties negotiating for the entry of Rule 502(d) agreements, which protects the privilege without requiring a reasonableness analysis.

#2 All of Me by John Legend
“I give you all of me, and you give me all of you.”

In 2014, a number of courts sanctioned parties and their counsel for not living up to their discovery obligations. The lesson for counsel is that they cannot take a passive approach to discovery; rather, they must be equal participants in the discovery process. (See also Alter v. Rocky Point School District and In re Certain Opaque Polymers.)

#1 Happy by Pharrell Williams
“Can’t nothing bring me down.”

Like the catchy tune Happy, TAR seemed to be on a tear in 2014. A record number of cases—at least 17—approved or endorsed the use of the technology, including the U.S. Tax Court. Among many positive comments showered on the tool, one judge remarked that TAR had a “better track record in the production of responsive documents than human review.”

As we look forward to another year of exciting changes in e-discovery, we hope there will be no need to invoke a line from Taylor Swift’s latest hit, Blank Space, to describe the developments: “Darling, I’m a nightmare dressed like a daydream.”

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