E-Discovery Day

On December 1, dubbed “E-Discovery Day,” software provider Exterro hosted two webcasts featuring judiciary members prominent in e-discovery circles. Sr. Master Steven Whitaker (Ret.) from the Queen's Bench Division in the UK led a webinar focused on GDPR preparedness. He indicated that US lawyers should know how to interpret the GDPR provisions, whether they are exclusive of all other legislation, and how to build arguments to justify collection, processing and transfer actions.

Master Whitaker's advice in reading the new, dense regulation was clear: Don't skip the preamble. The introductory section of any statute is often overlooked by lawyers, but in this case, the preamble contains over 500 recitals that aid the interpretation of the regulation's articles. Specifically, he previewed four noteworthy recitals from the new law:

  • Preamble Paragraph 19 (how the GDPR applies to foreign states);
  • Preamble Paragraph 26 (GDPR applies to “natural persons”);
  • Preamble Paragraph 45 (justification for data processing); and
  • Preamble Paragraph 115 (what if conditions of the GDPR cannot be met).

Members from the US judiciary continued discussions around the GDPR and other relevant e-discovery topics in a separate E-Discovery Day webcast. Judge Joy Conti, Chief District Judge for the Western District of Pennsylvania, noted that with regards to the GDPR, “It behooves the parties to educate the federal court about what the real problem is because of the EU and how important that particular data is to the case at hand. … We don't want people to be forced to violate foreign laws.”

Moving beyond cross-border e-discovery, the panel also addressed two oft discussed topics post-2015 FRCP amendments: cooperation and proportionality. In discussing preservation and proportionality, Judge Michelle Childs, US District Judge for the District of South Carolina stated, “The arguments [have] become more factual in court focusing in on the issues and claims but not necessarily the monetary costs and having any documentation to back that up through expert affidavits.” Not having this information may result in parties over-preserving to avoid tipping their hats to the opposing party.

In controlling costs, the judges turned their attention to the benefits of technology assisted review (TAR). “I am always disappointed when the parties come in and they start arguing about proportionality and they haven't focused on using technology assisted review,” stated Judge Conti. She noted that it is not applicable for every case, but if you have volumes of data to be searched, TAR should be a part of the review process. “I am not sure we will see it as robustly used in 2018 as it should be, but hopefully over the next three to four years we will see more focus on using TAR.”

Judge David Waxse (Ret.), former US Magistrate Judge for the District of Kansas, noted that all of this could be avoided if the parties work in advance to reach an agreement about what needs to be preserved and produced. “When I get counsel that are really willing to cooperate, it's amazing at how more quickly the case gets resolved. Somehow, we have to get the legal community to believe that's what they should be doing.”

Michele C.S. Lange is a freelance writer and attorney based in Minneapolis, MN. She has more than 15 years of experience in the e-discovery industry and can be reached at [email protected].