What’s next for e-Discovery in the United States and beyond? Earlier this week at Legaltech West Coast, we assembled three panels of experts—including some of the country’s most well-respected federal magistrate judges—to explore answers to that question. The discussions were lively, thought-provoking, and sometimes funny (even we can’t take e-Discovery too seriously).
The Evolving Forensic Technology Landscape
First, we took a look at current and emerging issues in ESI forensics and collections, including the latest challenges presented by technology advances in computers, systems, mobile devices, and the Internet of Things (IoT). Zach Warren from Legaltech News reported on the panel, moderated by DiscoverReady’s Daniel Blair, VP of Innovative Strategies—you can find Zach’s write-up here. One of the best pieces of advice came from Chris Sitter, eDiscovery & Digital Forensics Senior Manager at Juniper Networks, who explained that every forensic collections project, regardless of the complexity of the technology involved, should start by asking “What question is it we’re looking to answer?” Until the legal team can articulate that question, they won’t be able to form an effective strategy. Ben Robbins, who’s responsible for eDiscovery and Information Governance at LinkedIn, agreed. According to Ben, whether it’s a cutting-edge IoT device, or a more traditional data source, a forensic collection is “still the same exercise, doing information gathering, figuring out where it is, and pulling it out.”
The Latest US-EU Cross-Border Privacy Issues
Next, we examined the current state of US-EU cross-border discovery, and the highly uncertain future for these international data transfers. Moderator Jeanne Somma, DiscoverReady’s Discovery Practice Director, opened the program by joking that, because the cross-border discovery landscape changes so quickly these days, the panelists all asserted their “right to be forgotten” with respect to their remarks. The ambiguity in this area stems from the recent invalidation of Safe Harbor, a lack of consensus on the proposed Privacy Shield replacement, and the looming implementation of the EU’s General Data Protection Regulation. According to David Cohen, Partner and Practice Group Leader for Records and E-Discovery at Reed Smith, at the heart of the matter are broadly different interpretations of privacy on each side of the Atlantic—the EU’s “definition of what is private information is very broad.” Brock Wanless, Managing Counsel for Global Privacy & Regulatory at Groupon, explained that his approach to the uncertain regulatory environment is to develop comprehensive, company-wide policies and procedures that reflect good-faith, sincere efforts to protect the privacy rights of individuals. The ability to point to those efforts can go a long way towards satisfying inquiries by EU data privacy regulators. You can read Ricci Dipshan’s in-depth coverage of the panel for Legaltech News here.
Judicial Perspective: Are the New Federal Rules Having the Intended Effect?
Finally, I moderated a panel that asked three leading federal magistrate judges to share their insights on whether, in the first six months since going into effect, the new amendements to Federal Rules of Civil procedure are accomplishing their stated goals—to make civil discovery more proportionate, cost-effective, efficient, and cooperative. The judges all agreed that the new rules will eventually achieve these goals, but much work still remains to fully educate counsel and litigants on how to implement the revised rules.
To kick off the panel, Magistrate Judge Elizabeth Laporte, of the U.S. District Court for the Northern District of California, walked the audience through the significant amendments to Rule 26(b)(1). That rule now requires discoverable information to be both “relevant to [a] party’s claim or defense” and “proportional to the needs of the case.” With respect to proportionality, Judge Laporte counseled that “we really mean it; we’re taking this seriously and you should too.” Magistrate Judge Andrew Peck, of the U.S. District Court for the Southern District of New York, believes the new rule is raising awareness of proportionality as intended; he noted that since the amendment, he has seen more decisions and rulings on proportionality “than I saw in the last ten years.” And what about the “doomsayers” who predict that proportionality disputes will devolve into distracting “litigation about litigation?” Magistrate Judge Mitchell Dembin, of the U.S. District Court for the Southern District of California, said they are “full of it,” and with effective, active judicial case management (another goal of the new rule amendments), proportionality can be achieved.
Next, Judge Dembin lauded the amendments to Rule 34(b), which now requires parties to make objections to discovery with “specificity,” state whether any responsive materials are being withheld on the basis of an objection, and provide concrete timelines for document productions. According to Judge Dembin, this “mind-numbingly good” rule amendment will go a long way towards more efficient discovery, with much less gamesmanship. The judges also praised several other rule amendments, including changes to Rules 16 and 26 that encourage earlier, more informal discussion about discovery requests and discovery disputes, and more meaningful conversations during discovery planning about preservation of ESI and protection of privilege through Federal Rule of Evidence 502(d) orders. Never mind that Judge Peck says he’s “kindler, gentler” these days; he still insists that lawyers “commit malpractice” when they fail to take advantage of Rule 502(d), and he hopes the new rule amendments will raise more awareness about 502(d). Judge Laporte agreed, characterizing Rule 502(d) as “free insurance” for privileged materials. For additional coverage of the judges’ panel, and the thoughtful insights they shared, you can read Ricci Dipshan’s coverage in Legaltech News here.
For those of you who joined us during the panels, thanks for your support. If you couldn’t make it, we look forward to seeing you in 2017 at Legaltech New York!