On Tuesday, in celebration of E-Discovery Day, BrightTALK held a webcast, “2018 E-Discovery Case Law: 3 Different Perspectives” that featured a panel of lawyers discussing three cases in 2018 and their importance to e-discovery.

EPAC Technologies v. HarperCollins Christian Publishing

First, was EPAC Technologies v. HarperCollins Christian Publishing, a breach of contract case that was noted for its impact on the legal hold process. The case involved EPAC claiming that publisher HarperCollins fabricated reasons to terminate the contract after they negotiated a deal with another company.

The case emphasized that legal holds must be tailored for specific matters, explained panelist and Oath e-discovery manager Tara Jones.

Templates can be used for a notice's layout and routine language, such as the sections explaining what a legal hold is or why the notice was given. However, legal must advise the custodian of the specific data points, data sources and electronically stored information that they are responsible to maintain. Legal should also follow up to verify that the recipient understands what the legal hold means, Jones advised.

The case also demonstrated that a duty to preserve includes ensuring IT understands what data should be preserved and ensuring the relevant custodians' emails aren't deleted.

Rule 37(e)

For the second topic, the panel discussed the ongoing tension over judges' inherent authority and discretion under Federal Rule of Civil Procedure (FRCP) Rule 37(e) to sanction parties for failing to preserve discoverable information.

Panelist and Altria Group assistant GC Mike Klein said not all judges are following Rule 37(e), which was amended in 2015, although it provides uniform reasoning for implementing sanctions.

“This rule [Rule 37(e)] provides a very, very clear, step-by-step template for a court to assess the claims of spoliation and craft a remedy that is appropriate. Only if you find very egregious intentional conduct and only if the prejudice is significant will a court order the most significant sanctions,” Klein said. 

Pre-2015, intent wasn't needed to order harsh sanctions, Klein noted. Before 2015, if the party was prejudiced enough and demonstrated negligence or gross negligence, a case could be dismissed. Klein highlighted multiple case sanctions throughout the country that showed “where courts are still today, in 2018, asserting that … courts still retain inherent powers notwithstanding Rule 37(e).”

Panelist U.S. District Judge Xavier Rodriguez of the Western District of Texas said he sticks to using Rule 37(e) correctly. Inherent authority is used as a “gap filler” for matters that the rule, as written, unexpectedly can't comport with, Rodriguez said.

Waymo v. Uber Technologies

The last case was the high-profile Waymo v. Uber Technologies, which concerned ephemeral apps used by Uber Technologies staff to quickly erase any messages they made. Waymo claimed Uber used the apps to minimize its paper trail. Rodriguez said the case questioned when companies can circumvent the duty to preserve and if there's a duty to preserve messages in message-deleting apps.

If companies allow employees to communicate through a message-deleting app about a product at issue, they must ensure the messages aren't deleted, Rodriguez advised. 

There are signs that companies are already heeding his advice. Klein said Altria ensures that a proposed app's or platform's messages can be preserved for possible litigation.

Meanwhile Jones said she's known as Oath's “squeaky wheel” because she's constantly questioning if new technology created can preserve the data it collects.