The Year in ReviewKroll Ontrack 2013

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Workplace Privacy

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@M

ichele

CSLa

nge

Michele Lange

Director, Marketing

@KrollOntrack• Nationally-recognized expert in ediscovery, computer

forensics and legal technologies• Engages in industry relations, conducts legal and

market research to drive Kroll Ontrack’s legal technology product and service offerings

• Assists clients with integrating case strategy, from ESI preservation to litigation tactics

• Co-authored the ABA book “Electronic Evidence and Discovery: What Every Lawyer Should Know”

@Philip

Favro

Phil Favro

Independent Litigation Counsel

• Recognized industry expert in ediscovery, information governance, and data protection

• Has advised technology companies and other enterprises regarding complex business disputes

• Written over 50 byline articles and four law review pieces that have been published by top-flight publications such as the ACC Docket, Law Technology News, and the Michigan State Law Review

The #EDiscovery Newsfeed2013 Case Law BlogTrending in 2013

Looking Ahead: Trends of 2014

Headlin

es o

f 2013

New

sfeed

2013 Case Law BlogTrending in 2013

#Predictive Coding#Multi-Matter Management

#FRCP Amendments#Social MediaLooking Ahead: Trends in

2014

Case

Law

Blo

g

theedisco

veryb

log.co

m

In 2013, Kroll Ontrack summarized 61 salient ediscovery opinions—apportioned by topic as follows:

#Preservation & Spoliation (28%) of ESI, including when the duty to preserve is triggered

#Production (23%) of ESI for discovery disputes and the methods used

#Sanctions (18%) for spoliation, production disputes and noncompliance with court orders

#Procedural Issues (18%) such as search protocols, cooperation and privilege

#Costs (13%) such as shifting and taxation costs

13%

28%

18%

23%

18%

Case Law ThemesAlthough there were few “landmark” cases, many opinions re-emphasized key ediscovery issues that will remain prevalent.

Search:

Preservation & Spoliation Different standards appeared for when the duty to preserve is triggeredIn re Pradaxa (Dabigatran Etexilate) Prods. Liab. Litig.; Gatto v. United Airlines

ProductionRequests for production should not be overly broad, burdensome, or disproportionate to the scope of the matterApple, Inc. v. Samsung

Case Law ThemesSearch:

Procedural IssuesSearch methodologies refined and analyzed with greater scrutiny—must be reasonableIn re Biomet M2a Magnum Hip Implant Prods. Liab. Litig.

SanctionsDiverging opinions over the level of culpability required to justify sanctionsSekisui v. Hart; Herrmann v. Rain Link

CostsFees for predictive coding can be awarded to prevailing partyGabriel Techs. Corp v. Qualcomm

Page 2

Case Law Trends, 2008-2013

2013: The Year in EDiscovery2013 went “back to basics” and

refined predictive coding, social

media and multi-matter management

#Predictive Coding

#Pre

dictive

Codin

g

Who to Follow Refresh

CAARM @Computer-Assisted Review Reference

Model

“Leveraging CAR can maximize efficiency…”

View more suggestions

The judiciary has accepted it, but when should predictive coding be used as part of a search methodology?

o Predictive coding is no longer relegated to use in large matters

o It is quickly emerging as an important tool for EDA

The d

ata

on

pre

dic

tive

codin

g

To cull data To prioritize documents

To check the team’s work

To review opposing production

Other

ED

A +

pre

dictive

codin

g

o Both EDA and predictive coding are keys to reducing costs and maximizing ediscovery efficiencies

o Predictive coding solutions are often viewed as separate tools

o Some practitioners now employ predictive coding at various stages of the EDRM workflow

o Predictive coding often performs the analysis which is imperative to the EDA process

o Predictive coding is a complimentary tool rather than a standalone solution

ED

A +

pre

dic

tive

co

din

g

o It’s not that crazy

o EDA tools let you learn more about your data—so does PC

o Many other tools (de-duplication, email threading, etc) already exist in standalone “PC solutions”

oAggressive culling via keywords can have an impact on training in PC

oAny search strategy must be well designed according to the matter at hand

oThe producing party has substantial deference in conducting its search

Plaintiffs argued: the defendant should have used PC on the whole 19.5 million document corpus; the keywords tainted the training. We want joint review of training documents

Court held: defendant’s search was reasonable

In r

e B

iom

et

Defendant’s search strategy:

3 million documents

19.5 million documents

Production

Keyword

Search

Predictive Coding

#Multi-Matter Management

#M

ulti-M

atte

r

Managem

ent

According to the RAND Corp., companies spend $18,000 per document to collect, process, review and produce a gigabyte of material.

Matters with overlapping custodians, documents, coding decisions and metadata from earlier matters can be leveraged for cost savings.

Who to Follow Refresh

EDiscovery.com @EDiscovery.com

“We turn ediscovery from an Art to a

Science…”

View more suggestions

The Portfolio Approach

Case 1 Case 2 Case 3 Case 4 Case 5

The data from each case is recollected in all subsequent matters!

Total ESI Collected and

Uploaded:The “Case by Case”

Approach

The data from each case is collected once and reused in subsequent matters!

Case 1 Case 2 Case 3 Case 4 Case 5

#FRCP Amendments

#FR

CP

Am

endm

ents

The Amendment efforts took a big step forward.

The Committee on Rules of Practice and Procedure approved proposals for a public comment period on June 3.

Proposed Rules 26 and 37(e) have generated significant debate.

Who to Follow Refresh

Federal Rules of Civ. Pro. @FRCP

“A public comment period…”

View more suggestions

The Amendment ProcessAmending the Federal Rules of Civil Procedure is a time consuming process of formal comment and review involving a minimum of seven stages:

Step 1

Step 2

Step 3

Step 4

Step 5

Step 6

Step 7

Initial consideration by

the Advisory Committee

Publication and public comment

Advisory considers public comments and gives final

approval

Approval by the Standing Committee

Judicial conference approval

Supreme Court approval

Congressional review- rules take

effect

From start to finish, it can take two to five years for a suggestion to be enacted

as a rule!

Step 1

Step 2

Step 3

Step 4

Step 5

Step 6

Step 7

Initial consideration by

the Advisory Committee

Advisory considers public comments and gives final

approval

Approval by the Standing Committee

Judicial conference approval

Supreme Court approval

Congressional review- rules take

effect

Publication and public comment

… The Package released to the bench and bar for public comment

on August 15, 2013, with public hearings on November 7, 2013,

January 9, 2014, and early February 2014

Standing Committee

approves the Package - June

2013

Rules Committee adopts the

Package – April 2013

The Amendment ProcessWhere we are, and what’s next:

Impetu

s fo

r C

hange

The 2006 Federal Rules are silent on numerous issues, such as:

o The scope or onset of preservation obligations

o Guidance on imposing sanctions for violating duty to preserve

o Proportionality and discovery costs

Result: Issues addressed via case law

o Circuit splits on preservation and sanctions

o Continuously increasing costs as organizations try to preserve data without clear rules

o Problem exacerbated by data proliferation and rapidly evolving technologies

The 2

013 P

roposa

ls

ADVISORY COMMITTEE ONCIVIL RULES& COMMENT ON RULES OF PRACTICE AND PROCEDURE

The proposal contains amendments to the following Rules:

oCooperation: Rule 1

oProportionality:

o Scope: Rule 26(b)(1)

o Limits: Rules 30,31,33,34 & 36

oDiscovery costs: Rule 26(c)

oPreservation Planning: Rules 16 & 26(f)

The proposal also contains a replacement Rule 37(e) to address Spoliation and Sanctions

Propose

d R

ule

26

A party’s ability to “obtain discovery” is now clearly conditioned on proportionality

o Plaintiff’s Pointo This sends a message to courts that they can deny

discovery and will breed early motion practice

o This will present a substantial obstacle to individual plaintiffs attempting to assert a claim

o Counterpointo These minor changes will not shift the balance of

discovery because these factors already appear in the Federal Rules

o Any added protection this new wording presumptively offers already exists in our rules in the form of certifying discovery disclosures under Rule 26(g)

The rule moves proportionality

factors of Rule 26(b)(2)(C) to Rule

26(1)

Propose

d R

ule

37(e

)

Removes the traditional verbiage of the ‘safe harbor’o Instead, if any party fails to preserve

information in “anticipation or conduct of litigation,” a court may issue basic sanctions

o However, if a court finds “substantial prejudice” plus bad faith or willfulness, more severe sanctions become available

o More potent sanctions are also unlocked where a court finds that that spoliation “irreparably deprived a party of any meaningful opportunity to present or defend against the claims in the litigation.”

If the draft Rule 37(e) went into

effect today, it would overrule

Sekisui v. Hart

Sta

te

ED

iscove

ry

Rule

sCheck out the Kroll Ontrack

Ediscovery rules & statutes

interactive map!

http://www.ediscovery.com/pulse/frcp-

rules-map/

#Social Media

#Socia

l Media

A plethora of issues have risen from social media, including:

o When the duty to preserve is triggered – and if there is a duty

o How BYOD at the workplace alters litigation

o How the workplace can manage personal accounts

Who to Follow Refresh

Twitter @Twitter

“Going Public!”

View more suggestions

Disco

vera

bility

of S

ocia

l Media

Do parties have a duty to preserve data on social media accounts?

oPublic social media posts are generally discoverable (Keller v. National Farmers Union Property & Cas. Co.)

oAbsent a sufficient showing of relevance, courts will not order discovery of social media (Potts v. Dollar Tree Stores, Inc.)

oBut courts may sanction for spoliation of relevant social media (Gatto v. United Air Lines, Inc)

The rules differ when a personal account

is used for work: one court just sanctioned

for destruction of such evidence.

(P.R. Tel. Co. v. San Juan Cable LLC)

“Refers to employees taking their own personal device to work, whether laptop,

smartphone or tablet, in order to interface to the corporate network.”

- Pcmag.com encyclopedia

What is BYOD?

Bri

ng Y

our

Ow

n

Devi

ce

Work-related Devices Personal Devices

THEN

NOW

Honeyb

ake

d

Ham

o In late 2012, the court in E.E.O.C. v. Original Honeybaked Ham Co. of Georgia ordered production of data on the plaintiff’s social media sites

o Bring your own device (BYOD) is spreading: half of all employers will require employees to provide their own technology by 2017 (Gartner)

o Just as documents relevant to a lawsuit are subject to discovery, so also are relevant documents in cyberspace

o You may have a duty to preserve relevant social media

Proble

ms w

ith

SnapC

hat?

SnapChat is an app that sends self-destructing photos

o Are these “snaps” discoverable?

oThe metadata of such “snaps” still exists after the “self-destruct” but may be too burdensome to retrieve

o What about when a party purposefully sends “snaps” to avoid creating evidence? Would this create a culpable mind?

SnapChat transmits over 150

million self-destructing photos

daily

Looking Ahead: EDiscovery in 2014

Possib

le Tre

nds

in 2

014

o #proportionality - Increased objections to/denials of discovery on these grounds

o #efficiency - Advanced analysis and filtering tools will keep decreasing source GBs and GBs produced

o #rule26(g) – Following Branhaven v. Beeftek, more courts will cite this rule to impose sanctions for sloppy discovery

o #FRCPchange – Rulemaking efforts take another step forward

o #InternationalDataPrivacy – International data protection laws are amended

o #CostConcerns – more clarification from judiciary on language for 28 U.S.C. § 1920?