Electronic Discovery Institute Class 32: eDiscovery Challenges in Specific Practice Areas: Product L
Here's a continuation of my postings about the Electronic Discovery Institute's online e-discovery certification program, that you can subscribe to for just $1. I last blogged about this program on September 30, 2018, Go to https://www.lawinstitute.org/ to sign up for it. The course entitled, eDiscovery Challenges in Specific Practice Areas: Product Liability Litigation is taught by Chris Liwski, senior corporate counsel for Sanofi US; Elizabeth Asali, assistant general counsel for GlaxoSmithKline; and Jess Weisshaar, an attorney specializing in data governance and products liability litigation at Shook, Hardy & Bacon LLP.
Introduction The biggest challenge for data collection conducted for products liability litigation is the number and variety of data sources that are like to be relevant. In a products liability case the safety and efficacy of the product are at issue. Email, network drives and database may all contain relevant data. Data is likely to be saved in many different places.
Unstructured Data & Mobile Devices Unstructured data may be very burdensome to collect. Email and marketing presentations are examples of unstructured data. Unstructured data is any data that is maintained in a manner that is not predefined. For products liability cases, companies often have up to half of the relevant data in an unstructured form. Unstructured data is often difficult to search. An individual may accumulate large numbers of individual files on a local drive or a share point site. It may be necessary to ask custodians to preserve unstructured manually.
Mobile devices may contain data outside the control of a company. The data will not be backed up on a company's servers. A company should have a good data policy which allows them to access data on their employee's mobile devices. Parsing through business and personal data may be difficult. Some employees may only use mobile devices to access business email - which will be backed up elsewhere. Others will download and edit documents on their devices.
Communication at a company wide level is necessary to make sure that policies on data retention are followed. Legal hold notices sent to subsets of individuals should provide specific instructions on how to preserve data.
International Considerations
Unique data preservation challenges arise when data exists in different languages in a single company. Language barriers may also be significant when deciding which search terms to use for electronic discovery. The translation of documents may increase costs significantly. The American form of discovery will be something that employees in foreign countries will not be accustomed to. Employees may misinterpret preservation notices as indicating that they have violated the law. Foreign employees should be instructed that there may be consequences for not complying with the obligation to preserve data.
Some countries may have blocking statues that will not allow data to be sent to other countries without following certain procedures. Such rules may make it difficult to meet the deadlines imposed by discovery orders issued by U.S. courts. A local attorney should be engaged in order to ensure that local data privacy laws are not violated. European countries define data privacy more broadly than the United States. Individual permission is usually required to access data. Laws may require that data processing be performed in the foreign country in which it is collected.
Further Considerations
Product liability attorneys often bring cases many years after the product is acquired by a customer. The customer can file a suit only when they become aware of the injury it caused. It may be difficult to find data about products that were researched and developed in the past. Products are used by plaintiffs for years after they are first sold. Relevant data may be 10 to 30 years old. Companies may no longer use the same systems to store data. Data may be archived in forms that are difficult to access. The cost of preservation and processing may exceed the value of an individual case. Discovery costs are usually the majority of the budget for a case. It is not wise to spend more to defend a case than was at stake in the first place. Companies must decide how to perform discovery cheaply.