Even though electronic discovery is nothing new, there are still many issues in this sector that remain unaddressed. In a recent issue of The Metropolitan Corporate Counsel Honorable Judge Andrew Peck and attorney David Lender outline the top ten e-discovery issues.
In “10 E-Discovery Issues in 2011: Expert Insight to Manage Successfully,” Peck and Lender note cooperation, proportionality, collection, search, Rule 502, privilege, social networking, cloud computing, foreign discovery and sanctions as the top e-discovery issues and recommend best practices when dealing with each to help manage “the explosive cost of e-discovery.” From the article:
1. Cooperation – Peck and Lender note “…litigants who approach the Rule 26(f) conference unprepared…lose an opportunity to rein in the potential scope of electronic discovery.” Since cost is directly related to scope, it is crucial to limit e-discovery’s breadth from the beginning of a case. Peck and Lender suggest parties can …”discuss search terms, [limit] the number of custodians, date ranges, [and limit] the scope of privilege logging….” Litigants should also agree on production format, preservation scope and collection of ESI to “…reduce the burdens and costs of electronic discovery substantially.”
2. Proportionality – Overpreservation is a common issue, Peck and Lender state, “because it is cheaper and easier to retain and preserve than to discard it…” and because of “the lack of predictability” in preservation laws. During trial, however, “…no more than a few hundred documents…” are used. Peck and Lender suggest that litigation could be more proportional and thus cost efficient if discovery “…first [focuses] on the key players and from active, more easily obtained sources, to see if that discovery provides sufficient information to litigate the case.” If needed, then and only then would parties delve deeper into e-discovery.
3. When to Collect? – The time of collection is crucial to limiting the scope and thus cost of e-discovery. “Requiring litigants to collect documents as a part of preservation would dramatically increase the cost of litigation,” Lender and Peck note. They continue, “Preservation occurs early in the process… so requiring parties to collect…data before the issues are even crystallized makes little sense and will simply increase the costs.” To reduce costs, parties should consider waiting for collection until the case issues and key custodians are more clearly outlined.
4. Search – Lawyers use keyword searches to cull down large volumes of data. However, as Lender and Peck point out, in email, “misspellings are rampant, and the client may use terminology, acronyms or code words that no outsider could be expected to know.” Therefore, newer technologies like concept search and clustering should be utilized. Lender and Peck suggest using a combination of keyword searches, clustering and concept search to accurately sift through large volumes of data.
5. Rule 502 – The article outlines Rule 502, which establishes a “case-by-case approach as the uniform rule for governing the issue of the waiver of the attorney-client privilege or work product doctrine in all federal courts.” However, as Lender and Peck point out, “The rule has yet to yield one of its main purposes, which was to reduce the costs of privilege reviews.” To help reduce the time of privilege review and reduce the costs, Lender and Peck suggest that “parties should request a Rule 502(d) clawback agreement in every case.” Additionally, they suggest that using clustering technologies may help to locate privileged documents. Clustering can help to identify groups of potentially privileged documents, which parties can, as Lender and Peck suggest, produce under a 502(d) agreement in place of a “page by page privilege review in advance of production.”
6. Privilege and Privilege Logs – Technologies such as keyword searches, clustering and concept search make locating privileged documents much more efficient. However, the more effective the technology, the higher number of privilege documents are discovered, which presents a new problem—a lengthy privilege log. The article notes Judge Facciola’s recent suggestion in which “some privileged ESI would not be logged at all, others logged in a general sense, and only certain ESI logged in full detail, as determined by cooperation among counsel with rigorous judicial supervision.” Although his suggestion would require more agreement between parties and more hands-on participation by the judges, it could be an effective solution.
7. Social Networking – As we’ve covered in previous postings, social networking can cause a multitude of privacy issues during e-discovery. Although Lender and Peck do not offer a specific suggestion for litigants in dealing with social networking data, it seems that companies should make clear to employees the rules behind using social networking for business purposes or for personal use of company computers to avoid potential issues if a case arises.
8. Cloud Computing – With Amazon’s recent cloud collapse and the rise in cloud usage, it seems a great deal of attention is being placed on the safety and reliability of cloud computing. “To reduce expenses or increase storage capacity some companies,” Lender and Peck note, “have begun to shift away from in-house e-mail and document servers and instead store such documents in the ‘cloud’ with third-party providers.” As we mentioned in this posting, safety issues with public clouds are common. Lender and Peck suggest that “…companies should ensure that cloud providers take steps to restrict access by the provider’s employees to the actual contents of the company’s email and ESI.” The article also makes note of the issues regarding clouds in foreign territories where “foreign governments [may] seek to serve subpoenas on the cloud provider to get access to a company’s data stored in the cloud.” In these cases, Lender and Peck recommend that companies “intervene and control the response to the subpoena, and [resist] the request to the extent legally permissible.”
9. Foreign Discovery – Due to cloud computing and the accessibility of electronically-based information in general, territories are blurred, making foreign discovery an important issue. Lender and Peck point out, “It may be virtually impossible for a company to comply with its US discovery obligations without violating another country’s data privacy statutes.” They note, “Counsel are advised to consult with experienced data privacy counsel in the foreign country to better walk the tightrope of conflicting US discovery obligations and foreign data privacy laws.”
10. Sanctions – Lender and Peck call 2010 “the year of sanctions” because of the large number of companies sanctioned for preservation failures in the previous year. They soften the blow, however, by mentioning that “…with very few exceptions, courts have not imposed severe sanctions…for honest mistakes by litigants.” They also note, “…much of the lack of uniformity in sanctions decisions is caused by the differing standards applied by different jurisdictions.” To avoid sanctions, Lender and Peck suggest “cooperation and transparency.” They state, “Working with your adversary and the court upfront can help raise and resolve issues early, and may lead to limiting the scope of preservation and production to more significant players, thereby minimizing the likelihood of mistakes occurring.”
As we near the halfway point for the year 2011, it will be interesting to see what roles these e-discovery issues continue to play in litigation. If litigants exercise Lender’s and Peck’s suggestions, we may begin to see uniformity in e-discovery practices.
