Posted by Joel Wuesthoff on Thursday, June 25, 2015 - 08:00
Electronic discovery, or eDiscovery, is continually evolving, and it is critical for corporate counsel to stay abreast of current trends. If you’re an in-house attorney, you know firsthand that there’s a lot to keep track of when it comes to eDiscovery — from the permissibility of predictive coding to requests involving social media. As you craft policies, practices and protocols to help your company plan for possible litigation and eDiscovery requests, here are a few recent case law trends to keep in mind:
1. Predictive coding continues to get the green light
Because the use of predictive coding and related advanced analytics technologies can increase the effectiveness and efficiency (i.e. “precision” and “recall”) of eDiscovery searches by reducing the cost and time required, corporations and their outside counsel are increasingly tapping into this evidence gathering tool. Several cases show that the courts are allowing and even encouraging the use of predictive coding. Judge Peck, who issued the first opinion approving the use of predictive coding, noted recently in Rio Tinto PLC v. Vale SA that “the case law has developed to the point that it is now black letter law that where the producing party wants to utilize TAR [technology-assisted review] for document review, courts will permit it.”
For example, in Bridgestone Americas, Inc. v. Int’l Bus. Machines Corp., the court issued a discovery order in the plaintiff’s favor allowing the use of predictive coding to winnow down a document set. In another case, Dynamo Holdings v. Comm’r, the IRS Commissioner objected to the use of predictive coding, arguing the technology was “unproven.” However, a judge rejected the argument and approved the use of predictive coding, stating that the method is efficient and cost effective.
2. Social media posts and Internet activity are discoverable
Social media and other Internet activity continue to fall under the same rules that govern other forms of eDiscovery, recent case law shows. In Thompson v. Autoliv ASP, Inc., the court compelled the plaintiff to provide all information from her Facebook and MySpace accounts for the prior five years so opposing counsel could identify “discoverable” materials. In Painter v. Atwood, the court sanctioned the plaintiff for deleting Facebook posts. In yet another example, Olney v. Jobs, the court sanctioned the plaintiff for deleting his web browsing history. In this environment, it’s become increasingly important for in-house counsel to understand the evidentiary importance of online materials and the necessity to preserve them.
3. Data stored in the cloud must be preserved
When it comes to eDiscovery, the cloud presents a unique challenge for corporate counsel and other attorneys. Considering recent trends, corporate counsel and their outside attorneys are under an affirmative duty to preserve relevant ESI (electronically stored information) maintained within cloud computing warehouses. In Brown v. Tellermate Holdings, the court imposed a sanction on the defendant for failing to preserve relevant information stored on Salesforce.com. Despite the fact that the information in Salesforce was relevant and responsive to the document requests, defense attorneys did not take the necessary steps to preserve the cloud-stored data. Counsel made representations to the court inconsistent with the nature of cloud computing, raising questions for the court as to the “ecompetency” of counsel. This case highlights how critical it is for in-house counsel to understand how to deal with data in the cloud, communicate with service providers and back up all relevant data.
Today’s corporations are under increasing mandates to effectively manage eDiscovery requests and establish defensible processes. This underscores the need for corporate counsel to stay informed about the latest rulings involving eDiscovery. As in-house counsel, you may even want to consider consulting eDiscovery experts (including both outside counsel and IT consultants) to ensure your corporation is well-prepared for any discovery challenges that may arise.
What has your experience with eDiscovery taught you? Share your tips below.