Six eDiscovery Themes to Watch for the Remainder of 2014 and Beyond

The process of electronic discovery has continued to mature during the past few years, with topics like technology-assisted review tools, social media discovery and proposed federal rule amendments taking center stage. Whether you’re an attorney, litigation paralegal or just want to keep current on the impact eDiscovery is having on the legal profession, here are six themes to monitor during the coming months:

  1. Technology-assisted review for electronically stored information  (ESI) will remain a topic of discussion.  Relationship forensics, visual analytics and predictive coding are just a handful of advanced litigation technologies being used to facilitate the eDiscovery process. While many experts agree, for example, that predictive coding can dramatically reduce the cost and time required for eDiscovery while enhancing the effectiveness of searches, it’s just one of many technology-assisted resources available. The bottom line is that new litigation technologies are continuously evolving in the eDiscovery space – and it’s critical to keep watch for new developments and particularly, how those technologies are deployed and managed.

  2. If passed, amendments to the Federal Rules of Civil Procedure (FRCP) will shake up eDiscovery. In August 2013, the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States submitted proposed amendments that address eDiscovery. The six-month public comment period that ended in February has sparked a fiery debate, with countless comments focused on the proposed amendments to several rules, including FRCP Rule 26 (the role and citing of proportionality) and Rule 37(e), revising the previous sanction language adopted during the 2006 amendment process relating to spoliation (the intentional or negligent withholding, hiding, altering, or destruction of legal evidence). In April 2014, the committee revised proposed Rule 37(e) before submitting it to the Judicial Conference of the United States. If enacted, these amendments won’t go into effect until at least December 2015, but they will likely significantly impact eDiscovery requirements.

  3. The “discovery about discovery” debate will continue. In 2013, there was an attempt to compel parties to disclose the search methods they used to find discoverable ESI. This trend has ignited intense discussion over whether the selection and application of technology (including the search terms employed and certain results) should be protected under work product privilege. If enacted, changes to FRCP Rule 26(b)(1) might further affect a party’s ability to seek “discovery about discovery.”

  4. Social media eDiscovery will continue to pose a challenge. The discovery of social media information falls under the same rules that govern other forms of eDiscovery. Still, some attorneys are either unaware of their obligations under the rules and related case law or slipping up when it comes to the preservation of information posted on these sites. For example, one lawyer agreed to a five-year suspension of his license after advising his client to “clean up” his Facebook photos. It’s become increasingly clear that if parties do not preserve social media information, they risk court sanctions.

  5. Personally identifiable information presents eDiscovery complexities in the global marketplace. As organizations increasingly serve clients across borders, the issue of how best to address country-specific personally identifiable information laws becomes acute. There exists inherent tension between the U.S. judicial system, which is typically aggressive when it comes to eDiscovery fact-finding, and many international jurisdictions that place a high priority on the protection of personal information as a human right. This pressure generates significant technical, legal and process-related challenges for outside counsel and their clients. To manage effectively, one should retain experienced counsel and third party providers with a global reach and expertise; develop clear processes to meet local privacy laws while simultaneously adhering to obligations of U.S. discovery; and continually monitor changes to privacy regulations in relevant countries and regions (e.g., Europe, APEC, etc.).

  6. Law firms and corporations are re-visiting their eDiscovery strategies. Corporations and their outside counsel are responding to increased pressure to revamp their programs and procedures to more effectively manage eDiscovery engagements and establish defensible processes. This includes identifying internal capacity and capabilities; and where appropriate, strategically supplementing existing expertise with external specialists, either on a contract or full-time basis.

Have you noticed any interesting eDiscovery trends not mentioned here? Share them in the comment section below.