United States: Kramer Levin E-Discovery Update: 2015 — A Year In Review

As 2015 draws to a close, the following is a brief overview of some recent developments in electronic discovery jurisprudence and the rules governing discovery generally, which will impact litigation in 2016. These include: federal courts are now guided by the principle of proportionality for defining the scope of discovery, a unified spoliation sanctions rule, and greater support in the jurisprudence and the federal rules for technology-assisted review to streamline and affect cost savings in electronically stored information ("ESI") review and production. Furthermore, with the introduction of the "Internet of Things" and the proliferation of social media, the types of evidence relevant to a dispute continue to expand. With all these developments to date (and likely more to come), attorneys should keep up with their e-discovery core competencies.

Amendments to the Federal Rules of Civil Procedure

On December 1, 2015, the proposed amendments to the Federal Rules of Civil Procedure (the "Rules") went into effect. By order of the Supreme Court of the United States, these amendments govern in all proceedings in civil cases commenced on or after December 1, as well as in all pending proceedings "insofar as just and practicable." Some of the most anticipated and highly publicized changes include those to Rule 26(b)(1), which now defines the scope of discovery as "any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case" and sets out six factors for determining proportionality, as well as amendments to Rule 37(e), which codifies the remedies available for negligent and intentional spoliation of ESI.

Other amendments to the Rules include:

  • Abbreviated time to serve a complaint after filing.
  • An emphasis on preservation, including consideration of preservation efforts at the Rule 26(f) meet-and-confer and the Rule 16 conference.
  • Allowing for service of Rule 34 production requests prior to a Rule 26(f) conference and changes to the form and substance of Rule 34 responses and objections, including requiring an explicit representation that a party is withholding documents based on an objection or objections.
  • The codification of cost-shifting availability.
  • A theme across the amendments – as detailed in the amendments' comments – that encourages cooperation among parties and early case assessment and management.

Proportionality Also Emphasized by New York Commercial Division

Also of note, as of December 1, 2015, the New York Commercial Division amended its preamble to emphasize proportionality's import as well, noting:

The Commercial Division is mindful of the need to conserve client resources, encourage proportionality in discovery, promote efficient resolution of matters, and increase respect for the integrity of the judicial process.

(emphasis added). This is consistent with the Commercial Division's rules and emphasis on proportionality in electronic discovery management and production. See Commercial Division Rules 8 & 9. Proportionality (and factors going thereto) is also included in the non-party discovery guidelines of the Uniform Rules for the New York State Trial Courts, and it is an issue about which attorneys are expected to be well-versed at a Section 202.12 preliminary conference.

For more information on the amendments to the Rules, see: "Proportionality: The (Not So) New Kid on the Block"

Comments to the FRCP Amendments Support Use of Technology-Assisted Review

Technology-assisted review ("TAR") - whether encompassing the more-common search term or metadata filter or developing analytics and other predictive coding software - continues to be robustly discussed by practitioners and courts alike. In early 2015, Southern District of New York Magistrate Judge Andrew Peck issued a decision in Rio Tinto v. Vale, affirming the use of advanced document review software over more common keyword searches or linear review by human reviewers. 306 F.R.D. 125 (S.D.N.Y. 2015).

The amended commentary to Rule 26 offers further support for TAR in appropriate situations:

The burden or expense of proposed discovery should be determined in a realistic way. This includes the burden or expense of producing electronically stored information. Computer-based methods of searching such information continue to develop, particularly for cases involving large volumes of electronically stored information. Courts and parties should be willing to consider the opportunities for reducing the burden or expense of discovery as reliable means of searching electronically stored information become available.

(emphasis added). As vendors continue to trumpet the efficacy and accuracy of their analytics software, it remains to be seen whether other courts will join Magistrate Judge Peck in affirming the use of predictive coding or be called upon to resolve disputes between parties on its use or implementation. Either way, the above-noted Rules' commentary may provide additional support for its use in cases with large amounts of ESI and potentially expensive linear review and production processes. The increased focus on discovery proportionality may further bolster predictive coding's use in 2016 and beyond.

For more information on TAR generally and predicative coding specifically see: "Federal Court Reaffirms Approval of Technology-Assisted Document Review"

Continued Development in the Jurisprudence Regarding Use of Social Media in Litigation

With the proliferation of social media, its uses in litigation - both procedurally and substantively - have increased. As such, courts have continued to address the preservation and spoliation of social media evidence. A recent example is the decision in Congregation Rabbinical College of Tartikov, Inc. v. Village of Pomona, a zoning and land-use dispute with claims arising under the First and Fourteenth Amendments and lodged in the Southern District of New York, in which the court affirmed a party's obligation to preserve social media posts and related evidence when subject to a litigation hold. 2015 WL 5729783, __ F. Supp. 3d __, at *16-21 (S.D.N.Y. Sept. 29, 2015). The court held that a village trustee's posts to social media and related messages should have been preserved, but were intentionally destroyed "with a culpable state of mind" and, as a result, relevance could be presumed. Even without the presumption, the court held that the content of the Facebook post and related messages were "plainly relevant" and that "Facebook posts are regularly produced in litigation as evidence of a party's thoughts and actions." The court imposed as a sanction on defendants an adverse inference instruction and attorneys' fees and costs incurred in connection with the motion, but declined plaintiffs' request for a terminating sanction.

Similarly, courts continue to address how relevant social media evidence may be used in adjudicating a matter, including its proper authentication. In US v. Barnes, a criminal defendant argued that certain Facebook messages attributed to him at trial were introduced into evidence without sufficient authentication. 803 F.3d 209, 217 (5th Cir. 2015). The Fifth Circuit Court of Appeals held that the government-witness's testimony that she saw defendant use the Facebook website, recognized his account, and that the website messages matched his manner of communication, were sufficient foundation to authenticate the social media evidence. The court noted that although the witness was not certain that the defendant had authored the messages, conclusive proof of authenticity is not required for the admission of disputed evidence and the jury had the responsibility for evaluating the evidence's reliability. Few courts have addressed the proper methods for authenticating social media evidence. Barnes provides some guidance in that still-developing landscape.

As the legal sphere adapts to challenges posed by multiple social media platforms, lawyers should be aware of and think ahead about the role this evidence might play in all potential litigation phases.

For more information about using social media in litigation, see: "Social Media: What Every Litigator Needs to Know"

Ethical E-Discovery - Kramer Levin Reports on California Bar Association Opinion and Other Developments in Ethical Obligations and Core Competencies for Lawyers

Guidance has continued to emanate from state bar and ethics committees on lawyers' ethical obligations and core competencies in dealing with client ESI in the discovery context, as well as more generally, as a result of increased awareness of cybersecurity threats.

In June, the State Bar of California issued an opinion outlining an attorney's ethical duties in the handling of e-discovery, and enumerated nine specific tasks that all lawyers conducting e-discovery should be able to perform. The enumerated competencies require skill related to dealing with ESI. Similarly, technology skills were also highlighted in the recently added Comment to Rule 1.1 of the New York Rules of Professional Conduct ("RPC"). While there is no present disciplinary record on these topics in New York, there is ample basis to discern a framework of core competencies regarding electronic discovery that New York lawyers should possess - derived from the ethics and court rules and sanctions and other e-discovery decisions issued from local and federal courts within the state - on which discipline might be imposed on competence grounds pursuant to RPC 1.1.

Technology's increasing role in shaping lawyers' ethical duties and core competencies can be seen also in the need to protect client confidences and confidential information against cyberthreats. The American Bar Association ("ABA") published a report and resolution on cybersecurity to encourage "all private and public sector organizations to develop, implement, and maintain an appropriate security program," which encouraged regular assessments of cyberthreats, implementation of appropriate security controls and the development of a response plan. ABA, Cybersecurity Legal Task Force Section of Science & Technology Law, Report and Resolution 109, August 2014. The resolution provided guidance and standards for organizations to employ when developing cybersecurity programs. The report looked to the Model Rules of Professional Conduct, including the duties of competence and confidentiality, as one of the underpinnings for its suggested frameworks, actions and programs. In August 2015, the ABA issued a related Report and Resolution 116, in which it urged increased funding for cybersecurity programs for the judiciary "to counter threats and protect information systems from cyber intrusions or data breaches." In this recent report, the ABA reiterated its concerns that underpinned Report and Resolution 109, and restated the need for standards, programs and frameworks that comply with "applicable ethical and legal obligations and [are] tailored to the nature and scope of the organization, and the data and systems to be protected."

Technology will only continue to advance and increase lawyers' professional obligations.

For more on the ethical e-discovery core competencies for New York lawyers, see: "Ethical E-Discovery: Core Competencies for New York Lawyers"

For more on the ethical e-discovery core competencies generally, see: "Ethical E-Discovery: What Every Lawyer Needs to Know" and "Ethical E-Discovery: Ethics and Interdependence in an Ever-Changing Field"

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.