As we found out in a year jam-packed with game-changing developments affecting eDiscovery, “the players gonna play, play, play, play, play” (#18, “Shake It Off” by Taylor Swift). With the enactment of the new Federal Rules of Civil Procedure, the eradication of the U.S.-EU Safe Harbor Framework, data breaches, ethics opinions, and more, eDiscovery is both the “cure” and the “pain” for many lawyers (#13, “Love Me Like You Do” by Ellie Goulding).
As we did last year, we’ve set the year’s major developments to the top songs of 2015, according to Billboard Magazine. While learning Silento’s dance moves to “Watch Me” (#8) won’t get you far in court, hopefully you’ll pick up some tips from the other cool grooves.
#20 “Fight Song” by Rachel Platten
“I might only have one match, but I can make an explosion.”
Much like kindling can ignite an explosion, data can fuel the fire in litigation. While some organizations have embraced information governance, others felt the pain of failing to engage in meaningful strategies to stem the uncontrolled growth of their data. With the implementation of the new rules of civil procedure requiring greater proportionality in discovery and more reliable guidance regarding preservation, organizations should closely adhere to their records retention programs, ensure their programs contemplate emerging forms of data, and consider imposing data minimization policies to limit the amount of data employees generate going forward.
#19 “Where Are Ü Now” Skrillex and Diplo with Justin Bieber
“Show me what to be. I need you to set me free.”
The Trans-Pacific Partnership (TPP), currently in draft, is a multilateral trade endeavor between the United States, Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam. Unlike many other agreements, it abandons a rigid stance on data protection. If approved, it could be the first international agreement to prevent governments from blocking the free flow of data across borders.
#17 “Want to Want Me” by Jason Derulo
“There’s nothing I, no, I wouldn’t do just to get up next to you.”
#16 “Lean On” by Major Lazer and DJ Snake (featuring M0)
“All we need is somebody to lean on.”
Growth in the use of third parties to provide legal services continues, as three trends encourage the use of legal process outsourcing: more FCPA enforcement, requiring the use of local entities to conduct internal investigations and precluding the need to transport data overseas; the growth of various types of data that requires specialized knowledge and technology; and security risks associated with moving data, mandating the use of local datacenters or on-site processing and review technology and personnel.
#15 “Bad Blood” by Taylor Swift (featuring Kendrick Lamar)
“Now we got problems. And I don’t think we can solve them. You made a really deep cut. And, baby, now we got bad blood.”
This song was “Taylor” made for the Schrems v. Facebook decision from the Court of Justice of the European Union. The decision to eviscerate the U.S.-EU Safe Harbor Framework permitting the transfer of personally identifiable information is one of those wounds that “last and they last.” There are some workarounds that U.S. organizations can rely on, including standardized contractual clauses and binding corporate rules, but companies that have not instituted these measures face a dilemma. As Swift aptly notes, “Band-Aids don’t fix bullet holes.” The Article 29 Working Party has given EU and U.S. authorities until January 31, 2016 to find an acceptable solution; if not, enforcement of the decision will begin.
#14 “Take Me to Church” by Hozier
“If the heavens ever did speak, she’s the last true mouthpiece.”
Emerging forms of data are often where the truth lies in litigation—just consider the many secrets hidden in Bloomberg Chat conversations, social media, and text messages—and the harsh sanctions that can result when they are carelessly handled in discovery. The problem is finding the right tool—along with search and linguistic expertise–that can filter out the irrelevant personal information that often clutters these data forms, parse their reliance on casual language and abbreviations, and isolate their underlying meaning.
#12 “Can’t Feel My Face” by The Weeknd
“And I know she’ll be the death of me, at least we’ll both be numb. And she’ll always get the best of me, the worst is yet to come.”
If you thought the loss of the U.S.-EU Safe Harbor was troublesome, you might not have seen the position paper from a group of German data protection authorities DPAs that questioned two of the key workarounds for the Safe Harbor: binding corporate rules and model contract clauses. The Position Paper made clear that German DPAs will not grant any new authorizations for data transfer to U.S. under either mechanism, meaning that most organizations have little recourse when transferring data out of Germany, aside from obtaining consent, which the German DPAs said is permissible only in “exceptional cases.”
#11 “Cheerleader” by OMI
“Oh, I think that I’ve found myself a cheerleader… She grants my wishes like a genie in a bottle.”
In March, a Sixth Circuit panel took issue with the Third Circuit’s Race Tires America, Inc. v. Hoosier Racing Tire Corp decision on awarding costs for eDiscovery. Writing for the panel in Colosi v. Jones LaSalle Americas, Inc., Judge Deborah Cook suggested that Race Tires was “overly restrictive” in its rejection of recovery for all eDiscovery expenses except those relating to converting documents to a different format and permitted the recovery of costs for imaging a computer. In another decision, the Ninth Circuit indicated its willingness to take a
more permissive approach to cost recovery.
Next week, we’ll wrap up our year-end summary of the top eDiscovery themes from 2015.