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Legaltech News recently reported that federal judges are concerned about the e-discovery competence of lawyers appearing in front of them. In a recent webinar hosted by Everlaw and Bow Tie Law, Magistrate Judge Sallie Kim and District Judge Xavier Rodriguez acknowledged the challenges in current e-discovery practice.

They discussed key trends lawyers should consider when preparing their cases. They also suggested lawyers review the 2015 amendments to the Federal Rules of Civil Procedure, which changed timing and procedures for case management and for presenting and arguing for discovery.

Despite these rules being in effect for more than two years, Judges Kim and Rodriguez said they regularly see a high percentage of parties appear before them ill-equipped to succeed on e-discovery challenges. To avoid those pitfalls, lawyers should prepare for their next hearing with these insights:

1. Read and understand all rules and guidelines relevant to your local court and judicial district.

The Northern District of California has a standing order or checklist which guides e-discovery meet and confers, for example in Rule 16(b) hearings. Judge Kim sees large cases which are using the standing order, and finds that adherence helps resolve disputes.

Judge Kim regularly hears cases from parties who have not adapted, do not cite, or are not adhering to the new FRCP rules from 2015. Prepare your team by ensuring everyone is fully versed in the current rules, and any local district guidelines such as the standing order. Reviewing these guidelines will help your team avoid any fines or penalties over technical competency.

Rule 16(b) conferences will require counsel to reveal specific details of the case. Judges will ask pointed questions in the hearing. Attorneys have a duty to educate their teams and clients to be prepared for this disclosure, and to work out the specifics with opposition before appearing before the judge.

2. The rate of change in technology and e-discovery case law means rulings that predate December 2015 may not provide an effective example for your specific case/guidelines.

Judges Kim and Rodriguez observed some major ways in which Rules 16(b), 26, and 37(e) are all playing a role in judicial opinions. In particular, Judge Rodriguez noted that despite the Rule 37(e) uniform standard/analysis around intent to deprive, judges have applied this to decisions in a variety of different ways. Case law since this rule was established is the best guide star for parties planning to apply it.

Judge Kim observed that it's very tough to prove intent in any setting. Rule 37(e) applies most effectively to corporate ESI preservation, rather than individuals. Judges' needs to adapt this rule to cases which don't fit the corporate ESI pattern may be the cause of seemingly inconsistent or unclear precedents in Rule 37(e) case law.

Judge Rodriguez suggested that the new FRCP rules have had a significant impact on sanctions being awarded for intentional spoliation, making this a less effective argument. Upcoming cases in 2018 will include arguments over the assurance of the security of the final repository/destination for confidential documents in production. The prevalence of this trend is closely related to the growing technological awareness and increased due diligence permeating the legal field.

3. Predictive coding is firmly established in case law and rulings precedent as accepted for discovery production.

Judge Rodriguez observed that the courts that have had to address predictive coding have all acknowledged that it can be used for discovery purposes. Where it once was considered the bleeding edge, predictive coding is now firmly established in case law. A recent example is the case of Winfield v. City of NY, over which Judge Katharine Parker presided.

In this case, predictive coding searches successfully helped the defendant narrow the scope and cost of supplemental searches the plaintiff requested. The request included a large scope of review: 665 search terms and 90,000 records, amounting to nearly $250,000 in review cost. The Court ordered the defendant to proceed with a blended search that narrowed relevant terms. The plaintiff brought a negligence challenge, arguing that the search driven by predictive coding inadvertently produced privileged but responsive documents. The court rejected this challenge.

4. Any challenges brought under e-discovery rules incur a burden of proof.

Both Judges Kim and Rodriguez noted that it's ineffective for parties to merely throw out the word “proportional” in a Rule 16(b) conference. They encourage parties to share specifics and detail the cost, scope, and time involved with the request. The more that parties can illustrate how those factors will affect the case, the better. Judge Kim especially expects to see proof of the undue burden, if that's the argument being presented.

Judge Kim said that a challenge based on the predictive coding applied in the production would have to prove that a mistake was made. She encouraged parties to find the document from another source, or prove knowledge of record-keeping practices to prove that the document does exist, despite not being produced. Judge Rodriguez echoed this theme, suggesting that parties who file a motion to compel have the burden of showing an incomplete production.

Parties hoping to defend a challenge on the basis of predictive coding practices would do well to compare and contrast results from a predictive coding-based review with a manual review from a subset of the total production. Once the results are generated, parties should prove that they are comparable and that the methodology in the original production was accurate. Judge Rodriguez encouraged parties to defend their predictive coding-generated production by sharing stats from the predictive coding analysis, completion statistics, and statistics from the quality-control check.

5. Parties with the most reasonable expectations of e-discovery conferences and/or challenges will be the most successful, which implies a burden to educate the client.

Judge Kim sees parties who sometimes worry that a reasonable request means they'll be taken advantage of. In actual practice, she usually sees the most reasonable requests connected to the parties who achieve a successful outcome. When she sees a party working to meet the other side's needs who is still rebuffed, she is more sympathetic to their requests. Parties wanting to avoid motion practice should strive to be the most reasonable party in the room, and win over the judge's sympathy. Judge Rodriguez echoes this theme, and suggests that the burden is on the lawyer to educate the client about how aggressively to pursue the case, and where the boundaries exist.

Given it's been more than two years since the FRCP amendments were adopted into the law, lawyers have a responsibility to properly prepare and adhere to the guidelines. Understanding the impact these rules have on your local court or district, and the rate of change in technology, is essential to success. Adapting case preparation and discovery strategy to allow for defensible predictive coding will guide your team in preparing the most effective arguments. Accepting the burden of proof, and preparing reasonable responses to arguments and court instructions ensures a winsome impression when your team appears in e-discovery hearings. Together, these judicial insights will smooth the way to success with your e-discovery practice and arguments.

 

Jon Kerry-Tyerman is Vice President of Business Development for Everlaw. Previously, he served as a Senior Director in the Innovation practice at LexisNexis, where he chaired the Digital Culture Task Force. Jon served over eight years as a Professor of Law at the University of San Francisco, where he worked in the Internet and Intellectual Property Justice Clinic.