Left to Right: David Horrigan – e-Discovery Counsel and Legal Content Director, Relativity. Nora Barry Fischer – U.S. District Judge, Western District of Pennsylvania. Andrew Peck – U.S. District Judge, Southern District of New York.. Xavier Rodriguez – U.S. District Judge, Western District of Texas. Peter Vickery – Supreme Court Justice, Supreme Court of Victoria. Photo taken at 2017 Relativity Fest in Chicago, by Zach Warren.

 

E-discovery is now an international affair: Not only can data be present in a number of different countries, and legal holds and production encompass a number of international offices, but even foreign courts are beginning to embrace technology assisted review (TAR) in their rulings.

The judicial panel at Relativity Fest 2017 reflected this international flavor: Justice Peter Vickery, Supreme Court justice at the Supreme Court of Victoria, who issued the 2016 McConnell Dowell Constructors v. Santam technology-assisted review (TAR) decision in Australia, joined a panel of U.S. judges to discuss the latest trends in e-discovery. U.S. District Judges Nora Barry Fischer of the Western District of Pennsylvania, Andrew Peck of the Southern District of New York and Xavier Rodriguez of the Western District of Texas were also featured on the panel, moderated by Relativity legal content director David Horrigan.

The panel ran through five key areas and six cases that transformed e-discovery over the past year, ranging from Taylor Swift to insurance to the aforementioned Australian case.

1. Spoliation of Evidence: 'Swift v. Mueller'

Taylor Swift is probably known for something a bit more than e-discovery, but her sexual harassment case earlier this year led to some interesting e-discovery questions. The accused in the case submitted some edited audio files of a conversation with Swift to his attorney, but claimed to spill coffee on his devices, losing the full version of those files. The court ruled that the defendant, a Denver radio DJ named David Mueller, did not have a willful intent to deprive.

“One of the things that I found was very interesting in this case is that the judge did it under old common law standards.” The parties did not rely on Rule 37(e), so the judge did not either, “which seems interesting,” Peck noted.

But he also had a question that couldn't be answered: Why would the judge allow the portions of the audio files while the whole was deleted? “As his lawyer, I would be demanding, 'Where is the entirety of this?' That was a big failure of his lawyer … He also had a duty to instruct Mr. Mueller about his duty to preserve, and that apparently wasn't done,” Rodriguez answered. “I'm starting to walk away thinking, what is it going to take to establish intent to deprive?” Peck joked: a barbecue.

Rodriguez ended by saying, “My recommendation to you all would be to forget the pre-2015 cases,” to which Horrigan answered to laughs, “We would if you would stop using them!”

Would this intent to deprive be different in Australia? “We would send the coffee spiller to jail. We love our coffee in Australia … but primarily for the spoliation of evidence,” Vickery joked. But in actuality, intentional spoliation could lead to up to five years in prison, following a previous case in which a British tobacco company willfully destroyed documents.

In that case, critical documents had been “destroyed to the point where the defense should not be run,” Vickery said, but the tobacco company later appealed and won, which concerned the public. This led to the institution of a 2006 law instituting these harsh penalties.

2. Proportionality and Metadata: 'In re State Farm Lloyds'

In this home damages insurance case, a homeowner wanted more than static PDFs from State Farm, but State Farm said that providing metadata above its normal ECS system flies in the face of proportionality. However, Rodriguez said that this case does not mean the end of metadata—the first court agreed with the plaintiff and said that State Farm needed to produce the metadata, but the Texas Supreme Court overturned that ruling.

“You know you're going to lose when the first sentence basically says, 'E-discovery costs a whole bunch of money,'” Rodriguez said. “I think the court might have gotten this right, but they used the whole wrong road to get there. … I think the plaintiffs failed to make a showing why all this is relevant, while the courts were fixated on costs.”

“Courts are really trying to get a handle on the costs of all that,” Rodriguez added. “That's all fine, but it's not going away. Everyone in this room knows that the amount of data collected is only going to get worse. … We as courts need to look at technology as a solution rather than looking at the costs.”

Vickery noted that in Australia, “We would judge the content of the metadata and whether it's relevant to the case itself.” He did note that he only hears large cases, and in small cases, he would be less likely to admit it. In the United States, Fischer agreed, saying, “It would be a struggle to convince me that it was worth it.”

3. The Internet of Things: 'State v. Bates' and 'State v. Dabate'

These two cases involved internet of things data in different ways. The first saw an Amazon Echo machine potentially record a murder in Arkansas. The defendant said that he had a right to privacy to not allow the echo data into evidence, but the court disagreed. Peck said the argument reminded him of previous social media privacy arguments, “where 5 million of my closest friends can see something on Facebook, but not you.”

“One lesson from this is that if you're in a room with an echo device, and you're about to be murdered, scream out 'Alexa' and you're fine,” Peck joked. “But in all seriousness, I'm not sure what the prosecution intended to get, assuming that didn't happen.” He thought investigating the IoT-connected water meter was more clever, showing potential cleaning of the hot tub where the alleged murder occurred.

In the second case, a Fitbit device had recorded a murdered woman moving around the house after her husband had claimed an intruder had tied her up. Peck noted that this sort of information, or cell site location data, is becoming more and more prevalent, particularly when he rotates through his court's Criminal Division.

Fischer commented on the reliability of this data, that some of them are going to be challenged, similar to polygraphs in the past. “Those kind of challenges, the Fitbit could misread one way or another.” She referenced a Pennsylvania case where a Fitbit actually helped the defense in a rape case, where the accuser was found to be doing other things during the time period in question.

She added, “I also will raise case management conferences with counsel: Have you thought about this data, that data? Do you have cameras in your building? Do you allow photographs?  … These kinds of questions, counsel need to be constantly asking of their clients.

4. Technology Assisted Review: 'McConnell Dowell Constructors v. Santam'

Just as Da Silva Moore in 2012 was groundbreaking in introducing U.S. courts to TAR protocols, so too did McConnell Dowell to Australian courts. But Vickery, who issued the decision, said it's just the beginning in the country.

“We're very much at the infancy stage; we have a lot to learn. As a result, the legal profession and litigators need to learn more,” Vickery said. As a result, the court is looking to release a checklist with proper TAR protocol, for what to consider for those unfamiliar with it. The court also introduces “court-appointed assessors,” similar to a U.S. special master, to supervise the TAR process “and give confidence to parties about TAR … and also help them formulate a cost-benefit analysis.”

These days in the United States, Peck said that still a small percentage of litigants use TAR. “But what I am glad to see, and it's anecdotal, where in passing … the parties just say, 'Oh yeah, we're using TAR.' No big fight, no big thing, etc.”

Rodriguez noted that “people want a Pontifical blessing” to use TAR, but he doesn't see “the mother-may-I question as my role,” instead preferring litigants to make their own choice. Peck disagreed, however, citing the Federal Rules and the just speedy and inexpensive provision.

5. The Attorney-Client Privilege: 'Irth Solutions v. Windstream Communications'

This case explored clawback agreements, and what it takes to wave the attorney-client privilege. The case ruled that Federal Rules of Evidence (FRE) 502(d) orders were not necessary in this case, which Peck (who has spoken on the topic many times) called “the most ridiculous thing I've ever seen.” A FRE 502(d) order is a non-waiver order that protects those with a lot of data to sort through, particularly when using technology.

“It is malpractice not to get a 502(d) order, because no matter how careful you are, some privilege document is going to sneak through,” Peck said. With the order, a simple two-paragraph version of which he has made available on the U.S. District Court for the Southern District of New York's website, attorneys can better protect issues with privilege.