Winston & Strawn LLP's eDiscovery & Information Governance Group is pleased to present the following year in review of important decisions and developments concerning a wide variety of electronic discovery and cross-border discovery issues.
The past year has continued a multi-year trend— hastened by the COVID-19 pandemic—toward the dramatic expansion of collaboration and short message formats in discovery. In practice and in the case law, we observe that parties, courts, government agencies, and practitioners are all increasingly familiar—and struggling—with collaboration messaging platforms like Slack, Microsoft Teams, and Discord, and with app-based messaging ecosystems such as WhatsApp and Signal. These platforms are in common in many organizations, and consequently, in litigation, and each presents new challenges in terms of its preservation, collection, unitization, and production. The decisions in Drips Holdings LLC v. Teledrip LLC, Red Wolf Energy Trading LLC v. Bia Capital Management LLC, and Mobile Equity Corp. v. Walmart Inc. illustrate courts' recent focus on the preservation and production issues related to Slack, in particular. We anticipate continued focus on and disputes about the appropriate form of production for messaging platforms (i.e., individual message, 24-hour digest, or other unitization) to move to the forefront.
This year also saw a continuation of a troubling trend in the context of motions brought under Rule 37(e) over loss of ESI. While we perceive an uptick in the number of sanctions motions being brought, generally, we also note the increasing frequency with which judges and other discovery referees recommend or award "curative measures" under Rule 37(e)(1) that include evidentiary instructions to the jury short of mandatory or permissive adverse inference instructions, including missing evidence instructions, and the opportunity to allow evidence about the loss to be placed before the jury. The instruction awarded in Fast v. GoDaddy.com LLC is illustrative of this trend. We are concerned that jurists are increasingly willing to entertain the prospect of messy, distracting, and potentially misleading "mini-trials" about ESI loss—something the framers of the 2015 amendment to Rule 37(e) were acutely attuned to and wanted to avoid.
On the topic of the 2015 amendments, we continue to observe that courts are struggling with how to apply the abstract notion of proportionality in practice. In part, this appears to stem from a continued failure of practitioners to properly support their arguments addressing the proportionality factors of Rule 26(b)(1)(B) with sufficient facts and evidence, leaving problemsolver jurists with little to go on but a meager record and intuition.
Finally, we witnessed a dramatic slowdown in the number of opinions on TAR, while observing TAR is becoming commonplace in document review – at least for prioritization and quality control. To that end, we still observe some decisions and regulators that are placing undue and unwarranted obligations regarding "transparency" or limitations of the use of TAR in conjunction with search terms.
Predictions for 2023
At the outset of the year, we wanted to take this opportunity to identify some trends that we anticipate in 2023 and beyond.
We anticipate that we will continue to a great deal of focus on the discovery of collaboration platforms, including MS Teams and Slack. We believe that the discovery of such platforms will expand with additional decisions indicating that such ESI should be considered part of the discovery process. We also see the software providers in the space continuing to offer enhancements in the tools available to identify, collect, review and produce such collaboration-generated ESI. We do not, however, see a single set of case law developing around production format and anticipate that we will continue to see a wide variety of decisions regarding the appropriate unitization of messages for production (e.g., X-messages before and after; 24-hour segments; entire message chain, etc.)
PORTABLE /PRE-BUILT CLASSIFIERS
The days of a single TAR classifier designed for relevancy determinations are coming to a close. Customers are demanding that their analytics and review software be delivered with pre-built and portable classifiers that can be run simultaneously over the same data set to address not just relevancy, but also significance, confidentiality, privilege and key issue identifiers. Certain service providers, such as Reveal, have made great advances in this area in recent updates. It remains to be seen if the largest software provider (Relativity) will focus on this capability.
THIRD-GENERATION AI HITS ITS STRIDE
Over the last decade, artificial intelligence engines have largely been used by lawyers in the area of ediscovery, with more advanced neural network AI engines remaining empty promises in terms of realistic deliverables beyond search and production. A wide variety of 3rd generation AI engines are now ready for prime time for use in a wide variety of legal tasks to include legal research, basic legal document drafting, document analysis, and contract management. The maturity of these engines is quite disparate, but we are likely to see numerous offerings in the legal industry this year and coming years. Adoption of these AI engines within the legal industry is very low at this point, but likely to gain speed rapidly through the year. Winston & Strawn has already contracted with a leading provider with hopes to integrate their advanced AI engine into a wide variety or workstreams. More to come!
INFORMATION GOVERNANCE COMEBACK
Information Governance has largely remained elusive for many organizations beyond those key documents relating to organization governance, accounting, and human relations. The primary reason why is quite simple: information governance requires classification of records in order to manage them through their lifecycle. To date, AI engines have not been able reliably to solve the classification problem, although we are optimistic third-generation AI engines will deliver in this area. With this said, Microsoft's information governance tools built into its MS Office 365 have finally reached a point of maturity where they can support automated (or semi-automated) classification and management of custodial based documents at a lower price-point. With additional pressures from cyber security and privacy to limit the amount and time period of records held (more on that below), we anticipate this new functionality within MS Office 365 has as now enabling organizations to revisit their approach to information governance.
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