It's safe to say that e-discovery case law has changed slightly in the past two decades. In the late 90s, notes Ken Withers, deputy executive director of The Sedona Conference, there might have been 10 cases in a year total with e-discovery issues. “Now, we have two cases a day. Roughly 400 cases are reported a year … that deal with some concept related to e-discovery or information governance.”

The result means a lot of change, but also a number of opportunities for attorneys, e-discovery practitioners, and the record keepers and information governance specialists they work with. At the 2019 MER Conference in Chicago, Withers and Ron Hedges, senior counsel at Dentons and former magistrate judge in the U.S. District Court for the District of New Jersey, ran through some of the most important electronic records management cases of the past year and what should be taken from them. Below is a selection of the cases they highlighted:

Federal Rule of Evidence (FRE) 502. In re Testosterone Replacement Therapy Products Liability Litigation (N.D. Ill. 2018); Arconic v. Novelis (W.D. Pa. Feb. 26, 2019).

As the fear of waiving privilege drove document review costs up, FRE 502(d) emerged as an important tool to allow both parties to agree that inadvertent or advertent disclosure do not constitute a waiver. The court can further frame this as an order, which means third parties in related litigation cannot claim the original parties waived privilege. “You still do a thorough review, just without that irrational fear,” Withers explained.

However, such orders can come with certain issues. In this Racketeer Influenced and Corrupt Organizations Act litigation, a health plan wanted to claw back six documents out of 180,000 for privilege, which the defendants moved to bar. Luckily for the plaintiffs, they had included the order, but with one problem: they only waived “inadvertent or unintentional” disclosure. “By using the terms 'inadvertent' or 'unintentional,' they invited the court into a side litigation … which is exactly what 502(d) was designed to avoid,” Withers said. He explained that this order should be clean: “You should simply repeat the words of the rule.”

The duty of preservation: What is the trigger? In re Abilify (Aripiprazole) Product Liability Litigation (N.D. Fla. Oct. 5, 2018).

In this pharmaceuticals liability case, the two sides argued whether rampant litigation in the pharmaceutical industry should have triggered a duty to preserve, particularly during a period where the defendant had an automatic deletion policy for emails after 60 days. The plaintiffs claimed this was spoliation, but the district court rejected the argument that industry events created anticipation of litigation. As Withers explained, “Any duty that existed was not owed to the plaintiffs, but was owed to the specific government agency” investigating the drug in question.

Hedges explained that “industrywide concerns are not sufficient to trigger a duty to concern,” but that doesn't mean those concerns should be ignored—companies are always going to want to talk to an attorney if relevant litigation is happening in the industry. But as Withers added, “that's a risk management decision” rather than a legal one.

What are “reasonable steps” in preservation? Franklin v. Howard Brown Health Center (N.D. Ill. Oct. 4, 2018).

In what Withers called his favorite case of the year, a Howard Brown employee sued her former employer over discrimination and wanted relevant messages from other employees. After only a few were produced, the plaintiff pushed further, asking for instant messages in addition texts and emails. The court ruled that the employer knew employees were using IMs, and they had a duty to preserve “because it's a relevant document relevant to this litigation.” Due to a number of failures, including one computer of a party being wiped and plaintiff's computer becoming lost, the judge called it gross negligence for failure to preserve.

Withers noted, “The common law duty doesn't extend to all things at all times. … However, you have to know what you have and how to lock it down.” Hedges added that the defendants' strategy was lacking all around, leading to almost inevitable sanctions: “My main rule is, don't piss off the judge. And there was obviously something going on here, it was messed up from the beginning.”

Preserving unconventional sources of ESI. Rubury v. Ford Motor (N. J. Super, App. Div. Mar. 6, 2019).

In this state court case, a plaintiff who had been in an accident in a Ford vehicle that resulted in serious injuries sued for damages. Ford, in turn, told the plaintiff that it would need to inspect the car's restraint control module (RCM), but the insurance company instead gave the car to a salvage shop, which promptly shredded everything, including the RCM. The plaintiff then sued Ford for not telling him to salvage the RCM, claiming punitive damages of $5 million. The court dismissed the plaintiff's motion, saying he was responsible for his error.

While the plaintiff in this case went about things in a unique way, Hedges noted that there are some important lessons to learn. First is that cars have a number of different data systems, so especially for record keepers in organizations with fleet vehicles and the like, it's important to know what data exists. But second, and particularly in litigation, “Often we talk about the duty to preserve from the defendant … I don't think we spend enough timing thinking about the duty to preserve for the plaintiff,” he noted. The duty to preserve goes both ways, and plaintiffs can get in trouble by deleting too early.

ESI search and retrieval methods. Shir Law Group v. Carnevale (Fla. App. Apr. 24, 2019).

In this Florida case, a group of condo owners sued their condo association to stop their building from being sold. In course of discovery, however, the owners obtained communications between the developers' law firm and the condo association's law firm, leading to a malpractice action. The court in the malpractice action initially allowed forensic evaluation of law firm's computers, but then found the evaluation included search terms like “condo”—which included nearly every case at this particular firm. The court ruled the evaluation wasn't supposed to be a fishing expedition, and should be tailored more narrowly.

Hedges said there were two key things to this ruling. First was the sheer volume of data investigated. But “I don't know if that by itself would have been enough,” he said. More pressing was that the appellate court was concerned about the firm's confidential information being revealed, as “a lot of that is going to be looked at by the forensic examiner.” Withers added to laughs that “lawyers are the worst people to compose keyword searches.” Since they are not trained in these searches, “People convince themselves that it works, when reality it's just a quagmire.”

Rule 30(b)(6) depositions. ICTSI Oregon v. International Longshore and Warehouse Union (D. Ore. April 5, 2019)

Federal Rule of Civil Procedure (FRCP) Rule 30(b)(6) covers depositions, and often is used to depose records keepers, for records management or IT systems. “It's a very typical thing, particularly in large scale litigation, and for many lawyers it's the first thing out of the box that they do,” Withers said. In this particular case, the plaintiff in a labor dispute said the defendant union's witness was either not properly prepared for a litigation hold or instructed not to discuss that hold. However, the court noted a litigation hold was not actually included in the plaintiff's Rule 30(b)(6) deposition notice, and did not award sanctions in the case.

Withers told the record keepers in the room that these depositions are not something that should worry them: “You as a witness will have a lot of advanced notice about what you need to discuss.” But, Hedges noted, there may sometimes be legal issues with these notices “because you have a problem with loose designations of what people want. You also have a problem of the person who produces may not be the person who knows everything.” As a result, some parties have taken to hiring outside personnel to testify, who interview relevant parties within an organization and pool their knowledge.