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Predictions for 2016 and the Changing E-Discovery Landscape

Jan. 7, 2016, 4:19 PM

Editor’s note: The author of this post is a fellow at CodeX: The Stanford Center for Legal Informatics and is a member of the California bar.

By Monica Bay, Fellow, CodeX: The Stanford Center for Legal Informatics

Late last year, the Federal Rules of Civil Procedure — which govern court procedure for civil cases in U.S. District Courts — were given a significant makeover, with subtle yet important changes to the way e-Discovery is conducted, and an acknowledgement to the growing importance of technology.

We asked 11 e-Discovery professionals to predict the ramifications for the coming year:

State Bars: We will see state bar pay more attention (following on California’s lead) to lawyers’ technological competency, including in e-Discovery. This development will parallel a jump in published opinions on the subject of advanced analytics in the search and review process. We will also see the words “algorithmic transparency” and “data ethics” enter into the legal lexicon, as the power and reach of our increasingly algorithmic world becomes ever more apparent.Jason R. Baron , of counsel, Drinker Biddle & Reath, Washington, D.C.

Rule 34: The revised Rule 34’s requirement to state what documents will be produced — and by when (including the start and end dates of rolling productions) will cause more discovery motions and disputes than any other rule change, because most practitioners will not start the e-Discovery process soon enough to be able to give accurate responses and objections. — Alison Grounds ,partner, managing director, Troutman Sanders eMerge, Atlanta.

Defining Proportionality: Parties will grapple with the challenge of defining “proportionality” as it applies both to the scope of discovery in general, and to the adequacy of search and review efforts in particular. The key factors that will need to be considered are the burden and cost to find responsive electronically stored information, and the value of that ESI to resolving the issues in dispute. But burden and cost need to be considered within the context of what is reasonably possible using available technology. Determining value depends on guessing what one might find and its value-add beyond what is already known. While parties will grasp for simple targets, such as a prescribed recall threshold, such arbitrary standards will prove unsatisfactory, as they address neither burden and cost, nor value. — Maura Grossman , of counsel, Wachtell, Lipton, Rosen & Katz, New York City.

More Expensive: Because proportionality is a theme that runs through all amended rules, you will often hear it brought up in the scope of discovery, meet and confer and other e-Discovery negotiations in federal cases. Because Rule 30(e), which pertains to curative measures and remedies, is sufficiently vague, courts still possess significant authority to impose “sanctions” on negligent parties (though that word is not part of the rule). Though cooperation is mentioned in the Committee Note of Rule One, there is no stick to enforce this principle. Litigation in federal courts will be more expensive because we have identified two new areas, proportionality and curative measures, into the rules for argument and motion practice. (It seems unlikely states will follow the federal amended rules because they were contentious and involved significant discussion over the last several years.) — Michael Arkfeld , Arkfeld & Associates, Phoenix.

Most Interesting to Watch: Case development of Rules 26(b)(1) and 34(b)(2)(B) and (C). Some will argue that amended Rule 26(b) significantly limits the scope of allowable discovery. Others will point to the Committee notes and argue that the amendment merely ‘restores the proportionality factors to their original place in defining the scope of discovery” and “does not change the existing responsibilities of the court and the parties.” It will be interesting to see how courts resolve such arguments — and whether that amendment, together with the amendments to Rules 1 and 16, has the desired effect of stimulating active and cooperative discovery by the parties and active case management by courts.

Amended Rule 34(b)(2)(B) and (C) will have a substantial effect on discovery practice as parties address the Rule’s requirements to state objections with specificity and “specify the part” of any request that may be objectionable. Case law development in 2016 may well illustrate whether the amendment will achieve its purpose, although the provisions of amended Rule 16(b)(3), allowing a party to ask the court for a conference before filing a discovery motion, may keep many Rule 34 issues out of sight. — David Shonka , principal deputy general counsel, Federal Trade Commission, Washington, D.C.

Boilerplate Objections: The ascent of proportionality in amended Rule 26 will prompt the emergence of boilerplate objections claiming that requests for production are disproportionate — notwithstanding the express prohibition of same in the Committee Notes to the Amendment. Efforts to interpose proportionality as an impediment to discovery will have the unanticipated result of focusing courts on damages at the start of litigation, with the potential to front-load discovery costs and prompt earlier resolution of disputes, albeit at larger average cost. Finally, those snoozing with respect to preservation and search of ESI on mobile devices will be rudely awakened by a high-profile decision with costly consequences for failure to deal with smartphones and tablets. —Craig Ball , ESI special master, Craig D. Ball, P.C., Austin.

No Substantial Impact: We will discover that moving the concept of proportionality in discovery from FRCP26(b)(2)(b) to FRCP26(b)(1) and changing the sequence of the terms in the definition will not have a substantial impact on the efforts to obtain a “just, speedy and inexpensive determination” of civil litigation. Proportionality is a great concept but very difficult to use in discovery because of the problem of defining and using the the terms that attempt to define the concept.

The new rule defines the concept as follows: “Proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”

Each of those terms may be very difficult to quantify. Unless the parties agree on what each of the terms means in their specific case the court may be required to have a contested hearing to determine their meaning. For example “the amount in controversy” will in almost all cases be determined very differently by the parties in the case. That is an issue that is to be determined at trial yet it is needed to determine proportionality in limiting discovery prior to trial. — David Waxse ,U.S. magistrate judge, Kansas City, Ks.

No Shenanigans: The amendments focus on cooperation, more efficient scheduling management, scope of discovery, proportionality, objecting with specificity and reasonable sanctions. These bring, if nothing else, significant awareness to problem areas in modern discovery. In 2016, attorneys can expect that courts will have very little tolerance for discovery-related shenanigans. There will be higher expectations that litigants will be prepared and will share responsibility to conduct discovery, to achieve a just, speedy and inexpensive determination of every action. Also: the amendments will be the driving force that makes predictive coding go mainstream. — Albert Barsocchini ,director of strategic consulting, NightOwl Discovery, San Francisco.

• Ticking Bomb: In 2016, more companies will systematically tackle a critical aspect of e-Discovery readiness: The elimination of redundant, obsolete and trivial data. Obsolete data can be like a ticking time bomb waiting to explode in the form of multiplied e-Discovery costs in the event of unforeseen litigation or investigations (as well as increased exposure to data breaches). Reasonable and defensible data remediation efforts can reduce storage costs and liability risks. The new federal rules help because they both: (1) promote proportionality considerations in scoping legal holds; and (2) reduce the risks from inadvertent loss of data that should be subject to a legal hold, although due care must still be taken to preserve such data.—David Cohen , partner, practice group leader, records & e-discovery, Reed Smith, Pittsburgh, Pa.

Hearings & Fees: The bad news for clients is that the battle over proportionality will likely require hearings and lots of legal fees, which is the antithesis of what the rules are trying to promote. The good side: Proportionality is at the heart of technology-assisted review 2.0 engines that are designed to massively reduce the volume of documents that need to be reviewed and produced. — John Tredennick , CEO, Catalyst.

Speed is Key: The key issue is speed out of the gate. The changes in the Rules are unambiguously pushing parties to develop detailed case strategy very early on to facilitate targeted and meaningfully scoped discovery that is proportionate to the dispute at issue. This is best done by developing processes that are faster at pulling together the necessary research and fact finding needed to inform a cogent early case assessment. Information systems will need to be warm and ready to analyze data on the fly and processes will need to be pre-positioned for forward leaning legal professionals to exploit. If it works as intended, all parties can look forward to an efficient, speedier dispute resolution process.— Warren Solo , vice president, information governance, law department, Viacom, New York.

Restore Rationality: The amended rules’ new focus in proportionality has the real potential to restore rationality to the federal rules in achieving the stated purpose of Rule 1 — the just, speedy and inexpensive determination of every action. — John Rosenthal ,partner, Winston & Strawn, Washington, D.C.