Getting The Big Picture On What’s Trending In eDiscovery
Phil Favro, Director of Legal Education and Resources, CTRL
The arrival of Thanksgiving last month marked the end of the traditional fall eDiscovery conference season in the U.S. Those conferences – the Georgetown Advanced eDiscovery Institute, ARMA, ILTACON, the EDI Summit, ACEDs, the annual working group meeting of Sedona WG1, etc. – cater to diverse disciplines and emphasize different messages for their respective audiences. Despite their kaleidoscope of content, these conferences – when observed holistically – can provide a big picture of the issues that are trending overall in eDiscovery. Beyond the cross-border quagmire resulting from the invalidation of the U.S./EU safe harbor, three principal trends have emerged from the fall conference season.
The Newly Enacted FRCP Amendments
The first such trend is undoubtedly the advent of the new eDiscovery amendments to the Federal Rules of Civil Procedure. The conference sessions dedicated to the FRCP changes, together with the number blogs and articles written on the topic, is simply staggering. This should be seen as a positive development since widespread education of the courts, counsel, and clients is needed if the rules changes are going to make an impact on the current discovery culture. Indeed, it was particularly encouraging to learn that the Federal Judicial Center and the Electronic Discovery Institute held a joint training program this fall dedicated to helping federal judges understand the practical considerations of litigating under the new rules. Without training of this nature for both judges and lawyers, the rules changes will likely have little to no effect on current discovery practices.
The California State Bar eDiscovery ethics opinion, published this past summer, elevated the discussion of technological competence. However, the HM Electronics v. R.F. Technologies decision, with its thrust focused on the need for eDiscovery competency, made that issue a priority for every lawyer. This new reality was certainly reflected at the recent Advanced eDiscovery Institute hosted by Georgetown Law. That event featured various sessions dedicated to helping lawyers address a myriad of technologically challenging issues, particularly surrounding ESI preservation and collection. With the ever-increasing amount of ESI and the growing number of sources generating that data, lawyers must raise their level of competence on the issues to appropriately represent clients in litigation.
Rethinking Predictive Coding
A third and final trend involves the continuing technological and legal evolution of predictive coding (also known as technology assisted review or TAR). That evolution was captured by U.S. Magistrate Judge Andrew Peck’s opinion in Rio Tinto v. Vale from earlier this year. The two overarching legal themes from that opinion – that technology assisted review does not require full-blown transparent cooperation and that it’s “inappropriate to hold TAR to a higher standard than keywords or manual review” – have been hot topics of discussion ever since. Moreover, Judge Peck’s mention of “continuous active learning” has made that TAR training approach a subject of frequent debate.
These TAR topics were discussed in detail at a recent event that Gibson Dunn & Crutcher co-sponsored with CTRL entitled Rethinking Predictive Coding. Featuring U.S. Magistrate Judge Patrick Walsh and Gibson Dunn partner and eDiscovery practice group leader Gareth Evans, the event generated a lively discussion between the audience and speakers regarding the issues. The ultimate take-home from the event was that lawyers must thoughtfully address the issues surrounding predictive coding. Instead of blindly yielding to certain discovery and technological practices that have hampered the use and proliferation of TAR, counsel should keep front and center its client’s interests in achieving the best possible results in litigation.
These trends and others are sure to be hot topics of discussion next year. Like you, we look forward to hopefully observing positive developments on these fronts in 2016.