ediscovery: Trends & Challenges

eDiscovery: Trends &

Challenges

Joseph P. Grasser Carrie E. Jantsch January 28, 2014

Overview

• Trends & Challenges

¾ Mobile Device Electronic Discovery and BYOD Policies – How BYOD Policies Complicate E-Discovery

– Recent Decisions

¾ Technology Advances and Predictive Coding – Trend or Norm?

– How Predictive Coding Can Help Manage Costs

¾ Potential Changes to the Federal Rules of Civil Procedure

Bring Your Own Device (“BYOD”)

• BYOD – companies allowing employees to use personal devices

to access company network and create business information

• According to a Cisco survey just last year, 78% of U.S. white-collar employees use a mobile device, such as a smart phone or tablet, for work purposes

• Special challenges for e-discovery

¾ Practical Issues: Information contained on an employee’s personal device may be more difficult to preserve and collect

¾ Discoverable Information: Is information stored on an employee-owned mobile device in the custody or control of the company? Probably, yes.

¾ Personal Data: Those conducting discovery may gain access to legally protected personal.

BYOD: Recent Decisions

• In re Pradaxa (Dabigatran Etexilate) Products Liability Litigation, No.

3:12-md-02385 (S.D. Ill. Dec. 9, 2013)

¾ The court held that relevant text messages on both employer-owned devices and on employee owned devices fell under the litigation hold

¾ “defendants had a duty to ensure that their employees understood that text

messages were included in the litigation hold [especially since]

defendants’ own documentation directs employees to utilize text messaging as a form of business related communication.”

¾ “[The] litigation hold and the requirement to produce relevant text messages, without question, applies to that space on employees cell phones dedicated to the business which is relevant to this litigation.”

• Cotton v. Costco Wholesale, No.12-2731-JWL (D. Ks. July 24, 2013)

¾ Court did not order production of documents from personal devices where plaintiffs failed to contend that Costco issued the cell phones to the

employees, that the employees used the cell phones for work-related purposes or that Costco otherwise had any legal right to obtain employee text messages on demand.

¾ But – what if plaintiff did allege that the phones were used for work-related purposes?

• Technology Assisted Review (TAR) ¾ Automated methods should be

viewed as reasonable, valuable, and even necessary

¾ BUT some level of manual

review continues to be important ¾ Cycle:

– Input of ESI Æ – Review Sample Æ – Random Baseline Æ – Auto Run Æ

– Prediction Error Corrections Æ – Random QC Æ

– Proportional Final Review Æ – Production

Predictive Coding: Trend or Norm?

• Predictive coding has been around since 2010 and has been a big trend in the industry in recent years

• Now becoming the NORM and EXPECTED by courts

¾ In re Biomet No., 3:12-MD-2391 (N.D. Ind. Apr. 18, 2013)

o Upheld the defendant’s use of predictive coding in tandem with

keyword search and deduplication over the plaintiffs’ objection.

¾ Chevron Corp. v. Donziger, No. 11-0691 (S.D.N.Y. Mar. 15, 2013) o Recognized that predictive coding is “an automated method that

credible sources say has been demonstrated to result in more accurate searches at a fraction of the cost of human reviewers.”

¾ Harris v. Subcontracting Concepts, LLC, No. 12-mc-82 (N.D.N.Y. Mar.

11, 2013)

o Rejected an undue burden argument and stating that predictive

coding and other technologies could dramatically reduce the time and cost to produce large quantities of documents.

Proposed Rule Changes

• The Federal Rules of Civil Procedure may be changing in ways that could greatly affect electronic discovery

¾ AUGUST 2013: Committee on Rules of Practice and Procedure of the Judicial Conference of the United States submitted proposed amendments to the Federal Rules of Civil Procedure related to e-discovery

¾ FEBRUARY 2014: Public comments accepted until mid-February • The proposed amendments may impact the management, scope and

sanctions related to e-discovery in federal courts.

• Rule changes focus on thee things: (1) encouraging early and active case management, (2) proportionality, and (3) preservation.

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Proposed Rule Changes

• Early and Active Case Management

¾ Revised 26(d)(2) provides for earlier document requests under Rule 34 to allow discovery disputes to be addressed at Rule 16 conference

¾ Rule 16(b)(3) scheduling orders and Rule 26(f) discovery plans would include preservation of ESI

• Proportionality

¾ Current limits to discovery in Rule 26(b)(2)(C)(iii) – proportionality considered in light of the needs of the case, amount in controversy, importance of issues, parties’ resources, whether burden outweighs expense, etc. – would expressly apply without necessitating a

protective order

¾ Reduce number of presumptive (1) depositions from 10 to 5 and limit time to one day of 6 hours (Rule 30); (2) interrogatories from 25 to 15 (Rule 33); and requests for admission limited to 25 (Rule 36)

• Preservation

¾ Revised Rule 37(e) focuses on failure to preserve information rather

than failure to produce and includes a list of factors for courts to consider in determining whether a party failed to preserve

•

BE COLLABORATIVE

¾ Identify departments that may be called upon to assist with a litigation hold – Legal, HR, IT, Records – and know what role each department will need to play

•

BE PREPARED

¾ Do not wait for a crisis to develop

eDiscovery policies and protocols, including BYOD-specific policies

•

BE INFORMED

¾ Know how data is stored and how the

company currently manages data retention

¾ Maintain a list of employee-owned devices that may contain discoverable data

¾ Learn from others’ mistakes

Best Practices

• Establish Information Governance Protocols

¾ RESPONSE TEAMS: Legal, IT, HR, Records Management

¾ DOCUMENT POLICIES: Understand where data is stored by

the organization and know how information is disposed of and retained

¾ BYOD POLICIES: Implement a clear policy to inform employees

of their obligations related to their personal device and the data contained on their device in the event of a litigation hold and to inform them how their device and data may be used in response to required discovery.

¾ TRAIN EMPLOYEES: Keep employees knowledgeable about

your policies, teach employees how to recognize potential trigger events and the responsibilities of a custodian, inform employees how information on their personal device may be collected or used

QUESTIONS?

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