Here's the thing about e-discovery in 2019: It's not just about e-discovery. The typical scope of what has constituted e-discovery historically has now become intertwined with privacy, emerging technologies such as biometric laws, and new applications of old statutes as data continues to proliferate and expand.

The judicial panel at this year's Relativity Fest encompassed this broad view, touching not only on e-discovery mishaps and spoliation, but also an Illinois biometric case, the application of the Americans with Disabilities Act (ADA) and more. Here's a snippet of what the four jurists said they've watched this year and will continue to follow as some of these cases move forward.

1. Rosenbach v. Six Flags

The Illinois Supreme Court's examination of the Illinois Biometric Information Privacy Act (BIPA) has received a lot of publicity, especially considering the lawsuits that might follow in its wake. In this case, a 14 year old boy had his fingerprint collected as part of park admission during a Six Flags field trip. His mother then sued the amusement park, saying this violated her son's rights. The court ruled in her favor, saying the park's fingerprint collection violated BIPA.

The press surrounding the case isn't surprising, because this case was just that groundbreaking, said U.S. District Judge Nora Barry Fischer of the Western District of Pennsylvania. She noted, "These cases are out there, I think you're going to see more of these types of cases."

In her mind, the court's ruling in Rosenbach mirrors that of civil rights cases, where even if there is not actual injury (as Six Flags did not do anything with the plaintiff's biometric information), there are rights at stake. "There is a policy here to maintain privacy, just like there is a policy to uphold civil rights," Barry Fischer explained.

U.S. District Judge Xavier Rodriguez of the Western District of Texas said he wasn't surprised to see the case turn out as it did, but did find the ruling interesting considering the lack of injury. Usually, he said, that tangible injury is what makes a case "ripe" to be found in the plaintiffs' favor in a ruling. But here, "the court never mentions the 'ripeness' element … and that's what makes this case so unique. I think you're going to see more challenges here, I don't think that's the end of the story," he said.

Tanya R. Kennedy, justice in the New York Supreme Court, agreed, though she did add that biometric data by its nature is not the same as other types of data when determining injury. People can change their credit cards or even Social Security numbers, but not their fingerprint. "The public is more sensitive to this issue about privacy, and I believe they are going to hold their officials accountable to enact the laws."

2. Georgia v. Public.Resource.org

This case involves copyright of the state of Georgia's legal code, and perhaps more than any other case, it has attracted passionate defenses on both sides of the issue, the panel said. In this case, the state of Georgia had an exclusive deal with LexisNexis to publish the Annotated Georgia Code, with annotations explaining the law coming from public officials as part of the publication. A nonprofit published the annotated code on its website, saying state law should be available to the public.

The 11th Circuit eventually ruled in favor of the nonprofit, indicating that the annotated code was not copyrightable in a 53-page opinion. However, the court "indicates in the opinion it was a close call," Barry Fischer noted. Generally cases and legislation are public, but "these annotations are a little bit different animal." If they were created by private entities hosting the annotated code, that likely would have been found to be copyrightable, but since the annotations were done by a panel of public officials, they were considered part of the law itself.

Now, the U.S. Supreme Court granted cert to the case earlier this month, and "you would not believe how many briefs have been filed," Barry Fischer added. She noted that a circuit split is clear in this case, as the Second and Ninth Circuit have made different rulings from the 11th here, the Fifth has its own, the First didn't come to a decision, and the only case out of the Sixth Circuit is extremely old.

Part of what will make the ultimate decision on this case interesting, said U.S. magistrate Judge William Matthewman of the Southern District of Florida is how the court separates annotations from code itself. A lot of times in his court, he said, lawyers will cite annotations and code almost interchangeably. The Supreme Court can rule that lawyers should stick to the code, but he added, "I'm just not sure that's a practical possibility. … I don't know what the Supreme Court will do, I think it's a really fascinating oral argument."

3. Bellamy v. Wal-Mart Stores

This case has a simple beginning: A Walmart shopper tripped over a wooden pallet in the store's gardening section. The story takes a turn, however, when discovery hijinks come into play. According to Walmart's manager, she took video, photos and a statement of the injured woman at the time of action. However, Walmart did not initially disclose the video or the statement, or the names of manager and the employee who left the pallet.

Rodriguez, the presiding judge in the case, referred the discovery issue to a magistrate, who gave Walmart a second chance at production. But this do-over caused a second issue when a paralegal inadvertently turned over privileged documents to plaintiff's counsel. They attempted to claw back those documents, but without a Rule 502(d) order, it fell to Rodriguez to determine via 502(b) analysis whether the inadvertently disclosed documents should be considered privileged. Ultimately, he allowed the clawback but also imposed some monetary sanctions on Walmart.

Kennedy said she supported her fellow panelist's decision in the case, especially since Walmart's conduct could have potentially even been an ethics question. "Attorneys must tread very lightly when representing clients and certainly providing information to the court. … Trust me, a judge never forgets when you are less than credible. It's not good for you. When you want a little leeway, the judge is going to remember that."

Matthewman noted that with so much data out there, "What I'm seeing is privileged information, privileged documents slipping through the cracks and getting produced." In his eyes, not only attorneys, but paralegals and litigation support professionals need to take more care than ever before with this type of information.

Barry Fischer also added that in her court, Rule 502(d) orders—in which parties agree to return privileged documents in the case of inadvertent disclosure—are expected. In the years she has made these orders opt-out rather than opt-in, only two parties have declined to sign the order. "To that end, I think most counsel recognize that it protects them from these types of disputes, and in particular malpractice claims."

4. Robles v. Domino's Pizza

The final case involved a vision-impaired man who tried to order a pizza on Domino's Pizza's mobile app and website, but found himself unable to do so. He proceeded to sue Domino's for an ADA violation. Ultimately, the Ninth Circuit ruled that the ADA applies to Domino's website and mobile services, "even though customers predominantly access them away from the physical restaurant."

The main question, said Kennedy, is a tech one: Are websites and apps applicable to the ADA? She noted that Domino's sought relief with Supreme Court, but the court denied to hear the case. "I think this says a lot, because now, Robles will have his day in court," Kennedy said, adding, "I think it's very meaningful for people like Robles to say, my voice will be heard."

The panel's moderator, Relativity legal education director David Horrigan, added that the ADA has been around for 29 years, but often it isn't thought about as part of the software development process. As a result of this case, he said, "All you software developers out there, you need to think about this stuff as well."