United States: 2015 Tips of the Month – A Compilation (Electronic Discovery & Information Governance)

Keywords: 2015, tip of the month, electronic discovery, information governance,

In 2015, big data grew larger as the world grew smaller, bringing with it exponentially increased risks and challenges—especially during the discovery phase of litigation. New technologies and decreased storage costs meant that amassing data became much easier, but the burdens associated with managing such data, and producing it when required by courts or regulatory bodies around the world, became more complicated. To find some relief, companies have increasingly looked to third parties and to revising their own internal policies. Additional relief may also come through the December 1, 2015, amendments to the Federal Rules of Civil Procedure.

Further complicating things was one of the significant, headline-grabbing events of 2015: the dissolution of the EU-US Safe Harbor Framework. Invalidated by the European Court of Justice in October, this decision will have a significant impact on international companies seeking to transfer data from European Union member nations into the United States. Until a new framework is established and implemented, companies will have to rely on alternative methods to comply with EU data privacy laws.

Big Data Discovery Challenges

Big data presents several challenges for parties involved in litigation given the size, volume and complexity of this information.

  • Cost Management. For cases involving lengthy time periods, multiple custodians or various data sources, it is not uncommon for companies to collect a terabyte or more of data (1TB = 1000GB). The costs associated with the collection, review and production of so much data are tremendous—often among the highest litigation-related expenditures. To keep costs under control, companies must find cost-effective methods to sort through massive amounts of data to identify relevant information.
  • Structured Data. Structured data refers to information in a defined field within a database record or file. Examples include databases maintained in Microsoft Excel and Access, Oracle's PeopleSoft and SAP database products. Because databases are typically designed to manage and process corporate information, not to prepare for potential litigation, they can be a challenging data source for litigation-related discovery. For example, databases are updated on a routine basis, complicating efforts to preserve information over the course of litigation. Further, databases often contain data with no relevance to a litigation, making it difficult to extract only relevant information without disclosing irrelevant and potentially confidential information. In addition, structured data may be maintained in a format that cannot be easily produced to an opposing party. Finally, because structured data often includes private information—such as employee and customer records, financial information and health records—companies must be mindful of privacy concerns.
  • Social Media. Many businesses now maintain a social media presence, and social media posts made by the company or its employees may be discoverable. Several discovery-related challenges are associated with social media. First, similar to structured data, the format in which social media is maintained may not be reasonably accessible to an opposing party. Second, posts may contain personal information subject to privacy laws. Third, social media accounts are controlled both by the account holder and the social media company, leading to uncertainty over which entity preserves and produces the data.

Strategies and Best Practices for Managing Big Data

Although big data is challenging during discovery, there are several strategies and best practices that can help ensure an efficient collection, review and production of this data.

  • Data Source Familiarity. At the outset of discovery, it is important to identify and become familiar with the various sources of potentially relevant information. By working closely with the company's information technology professionals, counsel may determine cost-effective strategies for data preservation and collection for potential data sources. During the Fed. R. Civ. P. 26(f) conference, counsel should consider avoiding preservation protocols that are impractical for dynamic, structured databases.
  • Choosing the Right E-Discovery Vendors and Tools. Counsel should consider working with vendors that offer sophisticated e-discovery software tools, such as early case assessment, concept clustering, or technology-assisted review. When properly employed, these tools can eliminate significant amounts of irrelevant data and reduce document review time.
  • Database Reports. It is typically impractical to produce a database in its native environment. As an alternative, consider querying databases for relevant information and providing the opposing party with a customized or standard report. CSV text files are a widely accepted format for moving data between databases. This format is relatively easy to generate, read and analyze. Providing data reports in this format generally satisfies the "reasonably accessible" standard of the Federal Rules.
  • Statistical Sampling. When a database contains hundreds of terabytes of data, it can take several days to run a search and generate a report. Statistical sampling provides a random, smaller sample of the dataset, which allows parties to draw conclusions for the entire dataset.

FRCP Amendments

Amendments to the Federal Rules of Civil Procedure took effect on December 1, 2015. They include changes to the discovery rules emphasizing proportionality and cooperation. The changes include:

  • Rule 26(b)(1) now limits discovery to information that is relevant to a party's claim or defense and is "proportional to the needs of the case." The Advisory committee explained that this rule change is intended to "prompt a dialogue among the parties and, if necessary, the court, concerning the amount of discovery reasonably needed to resolve the case."
  • Rule 26(b)(1) also no longer states that discovery may include information that is "reasonably calculated to lead to the discovery of admissible evidence." This phrase previously had the potential to widen discovery beyond its proper scope.
  • Rule 26(d)(2) permits the parties to serve Rule 34 document requests before the Rule 26(f) discovery planning conference. This change enables parties to address any issues with the document requests at the conference.
  • Rule 37(e)(1) sets forth what sanctions a court may impose if electronically stored information is lost because of a party's failure to "to take reasonable steps to preserve it" and the lost information cannot be "restored or replaced through additional discovery." Under the amended rule, sanctions are not permitted if evidence is lost despite a party's reasonable efforts to preserve it. Further, even if a party failed to preserve information, sanctions are not automatic. Under Proposed Rule 37(e)(1), a court may order "curative measures," but only upon a finding that another party was prejudiced from losing the information.
  • Rule 37(e)(2) permits more severe sanctions, such as an adverse inference or the entry of default judgment, but only when the court finds that a party "acted with the intent to deprive another party of the information's use in the litigation."  

The amendments' focus on cooperation and proportionality in e-discovery encourages parties to engage each other earlier in the process with the goal of establishing reasonable bounds for discovery. Should the parties fail to do so, the amendments invite the courts to intervene and limit unnecessary discovery requests. Whether the courts will accept the invitation remains to be seen.

Data Transfers After EU-US Safe Harbor Framework Invalidated

In its decision to invalidate the EU-US Safe Harbor Framework, the European Court of Justice (CJEU), concluded that the framework failed to adequately protect the privacy rights of European citizens by allowing US intelligence agencies unfettered access to European citizens' data on American servers.

On February 2, 2016, the European Commission announced that it had reached a high-level agreement on a series of measures with the United States to resolve the issues in the CJEU's ruling. The new scheme, called "EU-US Privacy Shield" will be administered by the US Department of Commerce. It is anticipated that it will take three months for European and United State Authorities to finalize and put in place the arrangements that have been agreed, meaning that the EU-US Privacy Shield scheme should be implemented by May 2016.

Mayer Brown Electronic Discovery & Information Governance 2015 Tips of the Month Compilation

Originally published 16 February 2016

Learn more about our Electronic Discovery & Information Governance practice.

Visit us at mayerbrown.com

Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2016. The Mayer Brown Practices. All rights reserved.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

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.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions