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It's been a busy year for e-discovery in U.S. courts, given the explosion of data available in litigation and the increased emphasis placed on privacy across the country. The Relativity Fest judge's panel tackled the year in a unique way: four judges each picked a case that could impact the world of e-discovery for years to come.

The judicial panelists were Nora Barry Fischer, U.S. District Judge, Western District of Pennsylvania; Tanya Kennedy, justice, New York Supreme Court, New York County; Xavier Rodriguez, U.S. District Judge, Western District of Texas; and Andrew Peck, retired U.S. Magistrate Judge (S.D.N.Y) and senior counsel, DLA Piper. David Horrigan, discovery counsel and legal education director, Relativity, moderated the panel.

1. International Discovery and 28 U.S.C. 1782: In re Ex Parte Application of Levi Strauss and Co.

In This Case: The jean company Levi's sued The New Yorker, a European company selling knock off Levi's, in European courts. Levi's filed suit and subsequently won settlements in multiple courts abroad, but because of the differing nature of discovery, was not able to find the full scope of the damage against it. “The question was, how many did fake jeans did The New Yorker sell? It did not get enough information in Europe, so it came to the United States,” Peck explained.

Levi's tried to look at The New Yorker's website to find the answer, but The New Yorker wiped its website, which Peck said was spoliation, but effective for its purpose. Levi's needed to turn to other methods to get the information it desired.

What It Means for E-Discovery: Levi's utilized 28 U.S.C. 1782 to get discovery from the foreign company. “I'm surprised [the strategy] is not used more often,” Judge Peck said. 28 U.S.C. 1782 allows companies to retrieve data from foreign countries.

Levi's used the web tool The Wayback Machine, an Internet archive that stores web pages from each day for the past 20 years. The New Yorker's website had once been on The Wayback Machine, but was not any longer. Levi's filed a request to The Wayback Machine to see whether The New Yorker had submitted a request to delete, which would help prove an intent to spoliate, and to determine whether the information was still on The Wayback Machine's servers.

2. Diversity and Inclusion in the Courts and the Profession: SEC v. Adams

In This Case: In federal court in Mississippi, Arthur Adams stood accused of running a Ponzi scheme through Madison Timber Properties. In the case, the SEC wished to appoint a temporary receiver over the defendant's assets, but there was no distinct criteria for doing so in court. As a result, the court instituted a receiver using their advice—and specified that diversity is a particularly important in the choice.

Judge Carlton Reeves noted in the case that “it is indisputable that systemic oppression lies behind much of the judiciary lack of diversity.” Kennedy further paraphrased the decision from Reeves, saying, “Justice is a search for truth. That search will fail if a court does not incorporate a wide array of experiences, facts and perspectives into its decision-making processes.”

What It Means for E-Discovery: In today's legal world, women outnumber men in law schools. But in the current judiciary and among senior partners, that reality is not reflected. This case showed the inherent issues within the selection process, one that extends to all cases and how receivers and other officers of the court are appointed.

“We need to shift the paradigm, we need to change the way of thinking,” Kennedy said. “It's about knocking down these myths, not only about women, but about people of color, that we can't find any qualified applicants.”

She noted that many of the common myths about women not being as assertive, or as cognitively capable, have persisted despite being incorrect. “When we discuss the lack of diversity in the legal profession—and it's my opinion that this cuts across all sectors when we talk about women, when we talk about persons of color and the lack of opportunities that they have—it's often a matter, as Judge Reeves said, of systemic exclusion and a lack of invitations to the table.”

She added, “All of us, we have a responsibility to contribute to the pipeline.”

3. Emerging Technologies and Ephemeral Evidence: Waymo v. Uber

In This Case: Driverless car company Waymo was purchased by Google a few years ago, but at the same time, a number of former Waymo employees went to Uber. There were allegations that those employees took thousands of files with them, which resulted in Google filing suit. The issue, though, occurred in the way Waymo employees supposedly hid their misdeed: with ephemeral messaging apps, including Wickr. The allegation from Waymo was that Uber employees were using Wickr to had their trail.

The judge ultimately with ruled what Rodriguez called “find a delicate balancing point,” so that the jury would focus on the merits of the case rather than wading into a discovery fight. Waymo was allowed to mention in court that the Wickr use was a potential reason why Waymo could not provide more evidence, but can't “invite improper speculation or vilify” Uber as a result of its Wickr use.

As the decision read, “To repeat, the central issue in this case remains whether or not Uber misappropriated Waymo's trade secrets, not whether or not Uber is an evil corporation.”

What It Means for E-Discovery: It's sort of an unsatisfying ending,” Rodriguez said. The threshold question is whether a litigation hold should have extended to Wickr, “and I don't think this case really answers that question.”

Some may argue that Wickr is “like the modern telephone call,” Rodriguez said, in that nothing is written down. But Rodriguez noted that many messaging apps can go even beyond that, as many devices and apps can allow for controls that allow certain messages to be saved. If an app does not allow for those sorts of controls, he added, it may be helpful to make sure that those apps are not allowed as a function of the discovery order.

4. Data Privacy, the Fourth Amendment and Your Phone: Carpenter v. United States

In This Case: Cell phone records are a key source of information, and because of the interaction between phones and cell towers, there is a large amount of data that phone carriers hold. The government looked to get access to cell tower data under the Stored Communications Act (SCA), looking for multiple days worth to track the movements of a drug dealer. The district court and the 6th Circuit agreed, and through the evidence, sentenced the dealer to 100 years.

But the Supreme Court ruled that more was at stake, particularly with privacy. Rather than rely on the SCA, Chief Justice John Roberts, writing for the majority, said that these cases need to go before a magistrate judge with an affidavit. In doing so, the Supreme Court ruled that the government's acquisition of cell-site records was a search under the Fourth Amendment. Carpenter's case has been remanded back to the district court, but there has been no action on the docket since.

What It Means for E-Discovery: Now, it's a higher standard across the land if law enforcement is looking to access cell site information. As previously explored in Legaltech News, it's a case that will have wide-ranging consequences for privacy moving forward, particularly with the proliferation of mobile devices.

But that doesn't mean that it will completely change discovery “What I thought was interesting about Carpenter was that they didn't overrule the third party doctrine, but created a narrow exception” that looked particularly at cell site data,” Peck noted.

Rodriguez also focused on the third party doctrine, adding that there might be some inconsistencies in the decision. For instance, the decision focused on getting six or seven days worth of data, but “right now, the government can get a complete cell phone dump from the tower, all its contents,” he explained. “If we're worried about government intrusion, why aren't we worried about a complete dump?”