Judges in state and federal courts don't have much patience for those looking to skirt their discovery responsibilities. And new regulations and data types aren't going to change that. At the "Cite Early! Cite Often! The 2019-2020 Cases That Every Practitioner Should Know" keynote address at Legalweek 2020 in New York, judges from all around the country came together to discuss how courts are handling some of the most pressing discovery issues of the past and current year. Here are highlights from the conversation:

BIPA Rules the Land. The GDPR, Not So Much

Privacy regulations can be either your friend or foe, depending which one you are talking about. Magistrate Judge Willie Epps of the Western District of Missouri, for instance, discussed how plaintiffs don't need to show concrete harm to bring actions under the Illinois' Biometric Information Privacy Act (BIPA). He specifically referenced the Illinois Supreme Court ruling in Rosenbach v. Six Flags Entertainment and the Ninth Circuit's ruling in Patel V. Facebook, as examples of the risks BIPA poses to companies who don't obtain consent for any collection of their consumers biometric information.

Parties looking to use another, more far-reaching privacy regulation to their advantage, however, may be out of luck. Epps noted that the EU's General Data Protection Regulation has limited impact on the discovery process in U.S. courts. He cited the New Jersey District Court's opinion In re Mercedes-Benz Emissions Litigation and the Northern District of California's ruling in Finjan, Inc. v. Zscaler, Inc. as emblematic of how judges approach the EU regulation in discovery.

In both cases, parties cited the GDPR as a barrier to producing certain information. Yet both courts noted that there was no specific harm parties could point to if said information were to be produced. In Finjan, Inc. v. Zscaler, for instance, the court "acknowledged that GDPR exists but there is no guidance given that this would be a true violation of GDPR," Epps noted.

He added, "The GDPR Is not a blocking statute, rather, it is intended to protect the rights of EU citizen."

The Clock Is Ticking With Rule 37 (e) Concerns

The Federal Rules of Civil Procedure Rule (FRCP) 37(e),  which concerns when and how courts can sanction parties that fail to preserve discoverable ESI, isn't for the slow and patient. Judge Timothy Driscoll, justice of the Supreme Court of the State of New York noted that, while the rule "doesn't say when [a] court has to bring sanction analysis," it's better for parties to ask for such sanctions as early as possible.

He cited Hurry Family Revocable Trust v Frank case in an Arizona District court and Wakefield v. Visalus in an Oregon district court as examples of when sitting on spoliation charges for months, and sometimes years, can be detrimental to a party's case. "When you have the factual predicate to move for sanctions don't sit and wait, don't think there is some strategic advantage. In fact, there is a strategic disadvantage."

New Media Will Be Treated Like Old Media

Social media content may present some unique technical challenges for e-discovery providers, but in the eyes of judges, it's no different from other discoverable data. "The FRCP actually accommodates social media," said Judge Michelle Childs of the U.S. District Court for the District of South Carolina, adding that such data isn't subject to any unique admissibility concerns. "Lets remember that social media is ESI and as a discovery tool we have to treat it like any other discovery tool."

Childs also cited the Western District of Kentucky's ruling in Locke v. Swift Transp. Co of Arizona to stress that social media content is also subject to the same proportionality requirements as traditional discoverable content.

To be sure, new media format can pose higher risks for parties. Childs, for instance, noted that the broad use of ephemeral messaging will likely not be looked upon lightly by judges. Having "auto delete polices in place when you have a legal hold—those are rational for having sanctions." She added, "Its also a rational for sanctions when you're technologically competent but you allow these things to happen."

Childs stressed that the use of ephemeral messaging is "not sanctioned conduct in and of itself." Instead, "Most of it comes down to your intent; are you intending to destroy the information and is there bad faith in that regard."