Nothing jazzes up E-Discovery Day like a little controversy. The panel “E-Discovery Day Crossfire—Debating the Controversial Issues of E-Discovery” was moderated by Reed Smith partner David Cohen and featured firm partners Therese Craparo and Anthony Diana taking up opposing viewpoints on some of the more divisive issues facing the field.

Below are some of the highlights from the panel:

Preservation and Production from Employees' Personal Devices

Craparo argued that it's the producing party's responsibility to identify where relevant information may exist and turn it over, even if an employee's personal device or social media account is where “X” marks the spot.

“If the employee had a very important business document that was on their phone, would the employer say that they have no right to get that document?” Craparo said.

Diana countered by alluding to the recent fervor surrounding privacy, calling it the number one issue for “just about everybody.”

“Do you think that my client wants to be the first poster child for some state AG want-to-be governor who's going to make an example out of my client because of a matter of policy we ask for these things? No,” Diana said.

Disclosures and the Disposal of Data

Diana advocated that clients should keep all discoverable data in order to build the best cases.

“I don't want to have this wild goose chase in my litigation where I think I have a pretty good case on the merits and have to deal with all this preservation stuff because the client wants to get rid of some email or something,” Diana said.

Craparo argued that while a party does have an obligation to preserve relevant data, that doesn't mean perfection.

“Companies cannot be expected to operate their business and be held captive to litigation. You make reasoned judgments, you have reasoned preservation policies in place and if there is an issue you can disclose it,” Craparo said.

Responsibility for Data Stored with Cloud Providers

Craparo's opening salvo pushed the idea that data remained in a party's possession, custody and control even after it was placed with a cloud provider, citing service contracts that lay out explicit management requirements and conditions.

“If it's in the cloud, it's within your control and you have an obligation to produce it,” Craparo said

Diana countered that parties are actually losing an element of control when they send their information up into the cloud, arguing that cloud providers build a certain level of flexibility into their agreements and occasionally make updates to their systems that can impact data.

“Look at the contract. That's the law and you can't blame the company for saying, 'Oh we're signing a contract that has some flexibility to do things' because that's the way these contracts are drafted,” Diana said.

Should Parties Disclose the Use of Technology Assisted Review?

Craparo and Diana debated whether or not parties have to disclose or negotiate the use of technology assisted review (TAR). Craparo argued that TAR is essentially document review with some additional technology attached, and that as long as the party responsible for producing the responsive documents does so, it doesn't matter what methodology was used.

“This is simply an opponent grasping on a fear and a lack of knowledge of technology and using the word TAR to insert themselves into a process, to try and take control over it, to try and find issues to fight about it, to drive up the cost of discovery,” Craparo said.

Diana advocated for what he termed “strategic cooperation” when it comes to TAR.

“I don't think it's a big deal anymore; I don't think we're having huge fights so in the end I think it's always better to disclose,” Diana said.

Courts and Rule 37(e)

According to Craparo, Federal Rule of Civil Procedure (FRCP) Rule 37(e), which deals failures to preserve electronically stored information e-discovery, does not abrogate the court's inherent authority when it comes to sanctioning discovery abuses.

“That would include a failure to produce responsive information,” Craparo said.

Diana argued that rules like Rule 37 exist to provide clarity.

“The whole purpose of rule 37 is to make sure that everyone has the right set of expectations so when they're making decisions—business decisions or decisions about the litigation—that they're all following the same rules. That is fairness,” Diana said.