This is the time of year when many make predictions for 2011. But while we try to look forward, the reality is that as an industry, we have not yet conquered our eDiscovery challenges from 2010 – or even 2009 or earlier! In the spirit of the season and with a nod to Charles Dickens’ A Christmas Carol, I decided to take a Scrooge-based approach to eDiscovery. Without further ado, I present the ghosts of eDiscovery Past, Present and Future.
In the early days of eDiscovery, even before the amendments to the FRCP in December 2006, we all made plenty of mistakes as we learned about this challenging new area. Many of our problems resulted from collecting and preserving electronically stored information (ESI) from backup tapes; artificially segmenting the eDiscovery process into three stages known informally as “collect stuff”, “throw stuff over the wall” and “review stuff”; and pretending that eDiscovery either was a passing fad, or just could not be as difficult as we had heard.
While the list of mistakes and challenges from the past is virtually limitless (see Ralph Losey’s recent blog entry on this issue), many of these mistakes really boiled down to a few fundamental issues: a lack of coordination and communication between Legal and IT (and Records Management or “RM”); and a lack of basic knowledge on IT systems from people working in legal roles.
If these ghosts of eDiscovery past continue to plague you, next year resolve to:
- Have your legal team learn at least the basics about your IT infrastructure;
- Insure that Legal, IT (and RM) coordinate, communicate and interact on a regular basis; and
- Have a basic plan, prepared in advance, for what to do when eDiscovery hits.
Over the last year, we continued to struggle with the concept of when sanctions should be awarded for eDiscovery blunders, and how we should determine the severity of those sanctions. In fact, these are such difficult issues that there is currently disagreement even within the same jurisdiction (compare Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities, et al., 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010) (Amended Order) with Orbit One Commc’ns, Inc. v. Numerex Corp., 2010 WL 4615547 (S.D.N.Y. Oct. 26, 2010)).
But there were several other trends that rang through loud and clear. One of the clearest trends is that there is significant risk in relying upon employees to preserve and collect their own data for eDiscovery. (See our “Weekend At Bernie’s” post). While there is still no absolute prohibition, the problem with “custodian-based eDiscovery” is that employees can be self-interested or uninterested in a case, making it risky to assume that they will do what they are asked. Even for those who are sufficiently motivated, many will still fail because they are under-educated on both legal and IT issues. This makes it exceptionally difficult for them to determine what ESI should be retained as relevant to a case, and how to properly find and preserve that ESI.
Another clear trend is that unintentional – and even seemingly minor and understandable—eDiscovery blunders can cascade into prejudicing a case and result in severe sanctions. (See Harkabi v. Sandisk Corp., 08 Civ. 8203 (WHP) (S.D.N.Y. Aug, 23, 2010).
A trend that has been around for a while, but seems to finally be gaining momentum, is enforcing the point that litigation holds do not begin upon receipt of the first Request For Production of Documents, or even upon being served with a Complaint. Instead, the hold duty attaches when one can reasonably anticipate litigation, which typically occurs before the data of service (and for plaintiffs, will certainly occur before filing the Complaint). Courts are beginning to take a closer look at when a party’s preservation process actually began, so companies need to get legal informed about litigation threats so that decisions on holds can be made at the right time.
If these ghosts have the chance of haunting you, next year resolve to:
- Rely more upon your eDiscovery team of investigators and counsel, and arm them with useful technologies to complete their work. Merely hoping that your employees are handling the preservation and collection of critical ESI is no longer a viable option;
- Review your eDiscovery processes to insure that litigation holds are integrated into your business processes. This will insure that holds can be recognized at the appropriate time and not just after litigation has already commenced.
There are two main roads that the ghost of eDiscovery Future can take. The first is the obvious road of emerging and future technologies. For 2011, emerging issues will clearly include the Cloud and social media technologies such as Facebook and Twitter, and we will certainly see some new technologies that we have not yet even worried about.
The second road in the future is more sinister, and relates to issues that we should already be aware of but have failed to adequately address because they have not yet risen to the right level. These issues are actually riskier because we should be prepared, and mistakes with these technologies may not be viewed in a forgiving light because we should know better. As a few examples, this group would include legal issues around international data privacy, data stored in Sharepoint repositories, and structured databases.
It is difficult to predict what you should do about the ghosts of eDiscovery Future, but consider a few possible resolutions for the new year:
- At minimum, update your ESI Map to include basic information about data that may be outside your firewall (such as outsourced Email and other Cloud technologies, Facebook, Twitter, etc.);
- If you transact business outside the U.S., understand the basics of privacy law and determine whether and how they may impact you in normal litigation matters; and
- Subscribe to a publication that will keep you updated on the latest legal and technology developments (Law Technology News and its Daily Alert are terrific, free resources).
Good luck in 2011!
Filed under: Uncategorized Tagged: | 2011 predictions, cloud, eDiscovery, electronically stored information, ESI, FRCP, international_data_privacy, legal, Microsoft SharePoint, records management, sharepoint, social media technologies, structured_databases