Evolving case law, new proposed rules and technology advances provided no shortage of complex topics at this year’s conference.
The Annual Georgetown Advanced eDiscovery Institute never fails to deliver engaging topics that are top of mind for lawyers and technologists practicing in the electronic discovery realm. The industry has experienced a number of innovation milestones over the past several years as it has adapted to the complexities presented by discovering relevant evidence in this ever-changing electronic age.
Below are key “take-aways” that we gathered from the two-day forum.
1. Bring Your Own Device - The movement to allow employees to BYOD (Bring Your Own Device) and use said device(s) for work purposes has resulted in added challenges in the context of electronic discovery. Commingling personal and work data on devices (or cloud computing accounts) spans the boundaries of privacy, security, technology and legal issues of possession, custody and control. These issues don’t end with devices, as the Internet of Things evolves to include information about our everyday activities. I anticipate this topic will be a recurring theme at the annual conference.
2. Law Firm Data Security - Client demands are driving law firms and service providers to comply with stringent data security and privacy requirements. The cost of doing business now involves the task of satisfying clients’ information security personnel that the company’s data will not be exposed to risk while in the firm or service provider’s possession.
3. Revisions to Federal Rules of Civil Procedure - The proposed revisions to the discovery rules in the FRCP may invoke the parties and the court to focus more on the allegations at issue in the complaint and answer in order to determine the proportionality of discovery. Parties seeking discovery outside the topical bounds of the alleged issues may face an uphill battle to justify why additional discovery is required. The underlying hope is that the proposed revisions to the discovery rules will reduce the “discovery on discovery” and require prima facie evidence of systemic failure and not an incidental mistake in order to permit discovery into a parties’ processes related to how it preserved, collected, reviewed and produced ESI.
4. Technology Assisted Review - The question is no longer, “Is it permissible to employ Technology Assisted Review (TAR) in the review of ESI?” but rather, “How do I effectively implement TAR to get the best results and avoid a battle with the opposing party? And do keywords still have a role when using TAR?” More importantly, the elephant in the room is, “why hasn’t TAR delivered on its promises, yet?” It seems that TAR is being largely used as a method of prioritizing the review and not as a substitute for keyword searches. Of course, there are notable exceptions but TAR has certainly introduced more questions than answers for eDiscovery practitioners.
5. Cooperation and Transparency - The concept of cooperation and transparency are still being defined in practice as it relates to eDiscovery and especially as it related to employing TAR. The spirit of cooperation is to prevent unnecessary costly and time-consuming disputes but it’s not a prerequisite to a defensible eDiscovery process. Attorneys are struggling to find a balance between concerns of producing parties who resist disclosure and requesting parties who demand it. Finding that balance is exacerbated when the opposing party lacks sophistication or is uncooperative, and providing transparency into the eDiscovery process becomes counterproductive.
6. Defense of Process - As it relates to Defense of (the eDiscovery) Process, there’s a lack of consensus whether the ultimate goal is a defensible result (a defensible production) or a defensible process. Ultimately the question is whether the process needs to be defended absent a showing of deficiency in the production. The notion of being transparent is an effort to give the other party the assurance that there isn’t a reason to challenge the process downstream. Reaching a comfort level with TAR necessitates the level of disclosures that many find objectionable.
7. First Pass Review - The industry has accepted that the necessity of outside counsel performing first pass review is no longer required. The initial identification of documents for relevancy is now in the domain of lower-cost resources and/or technology. This creates an inevitable tension with outside counsel based on their legal obligation to certify the production.
8. Law Department E-Discovery Readiness - The pendulum between building in-house eDiscovery capabilities and outsourcing eDiscovery services has swung back and forth over the past decade. The answer appears to lie in a hybrid model. Companies represented on a panel reflected on models where everything post collection was outsourced as opposed to utilizing in-house teams, which manage everything except complex analytics and TAR. It is clear there is no one answer to defining an in-house eDiscovery function. Mature eDiscovery programs are focused on controlling costs, realigning the interest of outside counsel, reviewing the lack of standards around metrics and billing, addressing global challenges related to data privacy and building momentum for information governance to address many of the root causes related to eDiscovery challenges.
9. Information Governance - Information Governance is at long last a recognized business imperative that has an impact on eDiscovery, improving the overall business operations and managing risk. Panelists addressed the topic of ‘who should own information governance?’ given that information is created and owned by the entire company and the responsibility for storing and protecting that information resides within both IT and Information Security functions. A C-level position may be a solution (Chief Information Governance Officer) as an endorsement from the Board of Directors and as a means to garner the necessary cross-functional cooperation. Of course, there is no single answer and the maturity of the organization, the perceived risks and the culture must be taken into consideration when defining an Information Governance strategy.
10. The eDiscovery industry has come a long way in a relatively short life span of a little more than a decade. Many people have played instrumental roles in defining and shaping the eDiscovery space. This year we lost the quintessential voice of reason in Richard Braman, founder of The Sedona Conference. He leaves a rich legacy of transforming our profession and touching the lives of many with his unique spirit. Additionally, U.S. Magistrate Judge Facciola has announced his retirement. Judge Facciola’s wisdom, wit and courage in his e-Discovery decisions have left an indelible mark on our industry. I am honored to have benefited from these influential leaders.