Yesterday we attended a webinar called The Future of E-Discovery: Top Ten Trends and Predictions. Maura Grossman, Counsel at Wachtell, Lipton, Rosen & Katz, and Ron Hedges, former US Magistrate Judge, spoke on varying topics that have been foremost in the minds of the e-discovery world lately.
Grossman was at the Federal Civil Rules Committee meeting in Dallas, so it was interesting to get her take on the events. She mentioned the three proposals for reform, which we discussed, but also said that the DOJ voiced strong opposition to new rules at this point in time. I would have liked to hear more on this, but there will be another meeting in November, so we’ll keep you posted on the BLLAWG.
Ron Hedges made the point that while discovery reform remains at an impasse we need to deal with what exists now, and not what may exist in the future. With this in mind, the panelists jumped right in to talk about current interpretations and best practice of preservation and discovery. Here are some of the highlights:
The first question that was brought up was: At what point do you start collection, and to what extent do you collect?
Grossman says that as for now most companies are taking a conservative approach by playing it safe. To paraphrase, it is costly to do it right, but even more so to do it wrong. Since you can never really know what is relevant before a claim is filed, both Grossman and Hedges agreed that it would be best practice for a business to evaluate its needs, make a corresponding policy, and then implement it.
However as discovery becomes more complicated, the scope of preservation becomes less black & white. What counts as data that needs to be stored? Ephemeral data such as IP addresses? If your company has an in-office instant messaging system should you be saving those logs? You would not record all your phone calls, and if you don’t already log something for business purposes should you have to preserve it for a litigation hold? Then again, custodians might be sharing important information via IM.
In regards to litigation holds, you are only obligated to preserve data for a reasonable amount of time. But what is considered a reasonable amount of time? No one wants to remind the other party that they are still preserving data for a certain matter – it might remind them to take action.
The second part of the webinar was more ethics-based. Hedges brought up a question about new control and responsibility issues regarding your employees. For example, when do your employees’ Twitter updates reflect the company and when are they clearly acting from a personal realm? He predicts that as the new wave of social media continues to grow, we will have to look back to the law of agency, or apparent authority versus actual authority, and reanalyze how it applies to the modern day.
In that vein, can an attorney “friend” an adverse partner or a witness on Facebook? You would think the obvious answer is NO, but in New York you can look at any public information as long as you are honest about your identity. Nevertheless, the panelists recommend you follow traditional discovery methods to obtain that information.
On the whole, the webinar did not concretely go over the “top ten trends and predictions” as the title stated, but it did raise timely questions on data preservation and made interesting observations on the ethical gray-area we are entering as the professional melds with the personal. So what’s the takeaway message from “The Future of E-Discovery”? No one is sure where we’re going, but in the meantime make sure to think things through and be sensible.