2022 eDiscovery Update
The world of eDiscovery is constantly evolving in the face of new tech trends and legal innovation. This often introduces new collection, preservation, and production challenges that require further analysis and updated best practices. It is important for litigators and other eDiscovery professionals to follow new eDiscovery trends, rules, and court interpretations. Here are four recent developments that eDiscovery practitioners should monitor, as they will likely influence practice, legislation, and case law around the country.
#1: Crafting eDiscovery Requests with Reasonable Particularity
Earlier this year, the Sedona Conference published the “Primer on Crafting eDiscovery Requests with Reasonable Particularity.” This is not a new concept, as Rule 34 has required parties to draft production requests with reasonable particularity since 1970. This is not a one-size-fits-all requirement as it is very fact specific. In 2015, amendments became effective seeking proportionality and specificity with discovery requests. However, there is lack of legislative guidance on what constitutes “reasonable particularity,” and the courts have still been experiencing an influx of vague and overbroad requests that result in unnecessary case delays and increased costs.
With new ESI sources constantly emerging, vague, and overbroad requests can be very burdensome and may result in data dumps where a lot of produced information is not relevant to the case. Courts have ordered parties to amend requests asking for things like “all communications” to avoid this. The Sedona Conference released the primer on this topic to help practitioners comply with the rules and harmonize the case law out there, as modern eDiscovery can complicate this feat. Here are some key practice considerations from the primer to guide attorneys crafting discovery requests with reasonable particularity:
- Determine the specific information needed to ultimately overcome a claim or defense and anticipate likely objections
- Talk to clients and research public resources to obtain preliminary information that can narrow requests
- Hold a meet-and-confer conference with opposing counsel to limit the scope of discovery
- Start by sending a few targeted requests that will hopefully produce documents that counsel can use to tailor additional requests
- Keep costs in mind for both parties
- Set time limits when making broad requests
- Avoid form requests
- Limit requests to specific custodians or geographical locations
Following this guidance should help litigators craft more purposeful discovery requests, thus decreasing disputes and associated costs.
#2: The New York Supreme Court Commercial Division Adopts Rules to Align with Modern Law
Most business exchanges are now conducted electronically due to the rise in virtual work and emerging technologies. Organizations across industries have revamped working models to incorporate hybrid or digital first options that streamline daily operations and offer more flexibility. From an eDiscovery standpoint this adds to the amount of data needed for a case, can make processes more complex, and increases cost. This creates the need for courts to update eDiscovery rules that account for the dynamic eDiscovery atmosphere.
The New York Supreme Court Commercial division has paved the way by simplifying its eDiscovery rules to provide flexibility and simplify instruction with the goal of decreasing motion practice. The court consolidated all rules and added new provisions and advisory guidelines that reflect the realities of modern business. Key aspects of the new rules include the following:
- A proportionality requirement to measure eDiscovery cost vs. matter benefit
- Guidance for reaching early agreements on common eDiscovery dispute
- Encouragement to leverage AI
- Guidance on preserving, collecting, and producing data defensibly from trending emerging technologies
- Discussion of when cost shifting is appropriate
- provision for parties to claw back privileged information they inadvertently disclosed
- Encouragement for parties to consider new and emerging data privacy laws
While not a comprehensive list, this highlights major concerns amongst litigators across the country. The New York rules are expected to simplify and solve many eDiscovery obstacles early on, thus promoting transparency and eliminating some procedural conflicts. This will likely become the venue of choice for many commercial disputes until other courts similarly modernize their rules.
#3: Predicted Implications of Apple’s iMessage Recall Update
A recent update from Apple provides the ability to edit or recall iMessages within 15 minutes of sending. While many users will favor this feature, it poses significant eDiscovery obstacles. It is currently unclear if a recalled message will be gone forever or if there will be metadata to access in the event of litigation. Regardless, this adds another layer to custodial interviews and preservation efforts. Here are three things that litigators should consider:
- Metadata: If there is no metadata for recalled messages stored on servers for later retrieval, then the evidence is gone. A party may face spoliation claims resulting in detriment to strategy, delays, and increased costs. If metadata exists, litigators will need to dig deeper to determine where it resides and if retrieval requires unique or challenging collection mechanisms.
- Custodial interviews: Can include questions about message deletion or editing to aid with collection efforts. It would also be ideal to ask if someone took a screenshot of a message before it was recalled, as this can serve as alternate evidence of the conversation.
- Case law and other persuasive authorities: Just as with ephemeral messaging, interpretation by the courts will be crucial and instructive. Courts have sanctioned parties that use ephemeral messaging applications, placing an obligation on litigators to direct clients not to use these platforms as a means to delete potentially relevant communications when litigation is active or on the horizon. Courts will likely apply the same reasoning to recalled and edited messages, so it is best practice to include this in information governance programs, retention policies, and legal hold instruction.
#4 More Practitioners Are Using Cloud-Based eDiscovery
According to Statista, today more than 60% of corporate data lives in the cloud. With so much data already stored in the cloud, corporations seem much more comfortable moving to cloud-based eDiscovery over on-premise solutions. This year seems to be the tipping point where it can be considered a trend, and adoption will likely keep growing.
Corporations are realizing the many benefits and cost savings that come with the use of cloud-based eDiscovery tools. The main benefits are:
- Scalability: The cloud provides flexibility so that teams can turn the computing power on and off easily, which allows legal teams to easily scale up or down based on deadlines.
- Accessibility: As more cases become global in nature and talent becomes more dispersed, having a cloud-based application gives the option of using attorneys around the world as they can easily and securely access data from any location. This allows for the best teams to be assembled since having the team at one location is no longer necessary. Also, using eDiscovery cloud computing allows legal teams the ability to work together on documents and collaborate on projects no matter where they reside.
- Cost: Using cloud-based platforms eliminates the need for capital expenditure into technology, less staff to support the technology, and less storage space, which translates into significant cost savings.
Since there are still many who are hesitant to move their processes to the cloud, it will take some time for this to truly become the standard – but that is where things appear to be heading.
Keeping apprised of eDiscovery trends and court decisions is key to remaining compliant and ethical in a very dynamic field. This can also help attorneys streamline matters by tapping into innovation. The topics discussed above outline the range of eDiscovery issues that can arise – from new court rules to emerging technologies and beyond. While all different, common themes are the focus on utilizing tools that simplify processes and anticipating challenges to avoid obstacles that can be time-consuming and costly.