Special Master: TAR May Be Ordered if Production Deficient

Earlier this year, Special Master Dennis Cavanaugh issued a decision declining to compel the Defendants to use technology assisted review. See, Order & Opinion of the Special Master, In re Mercedes-Benz Emission Litig., No. 2:16-cv-00881-KM-ESK (D.N.J. Jan. 9, 2020).

The Defendants rejected the notion that the Plaintiffs had the authority to force them to use TAR. They also asserted that ESI using foreign languages; unique identifiers; redactions; and technical information would make the creation of an appropriate seed set difficult. They preferred to search the data of selected custodians with keywords. The Special Master pointed out that there was no case law supporting the position that a party could be forced to used TAR and referenced Principle 6 to the Sedona Conference's Best Practices Recommendations & Principles for Addressing Electronic Document Production, which states that parties are best situated to decide the most effective way to produce their own ESI. However, he also stated that, "Defendants are cautioned that the Special Master will not look favorably on any future arguments related to the burden of discovery requests, specifically cost and proportionality, when the Defendants have chose to utilize the custodian-and-search term approach despite wide acceptance that TAR is cheaper, more efficient and superior to keyword searching." Id. at *3. The Plaintiffs will be permitted to move to compel the use of TAR again, if the Defendants production is deficient.

The parties could not agree on a search term protocol. The Plaintiffs objected to using the same validation process as the Defendants because their review involves a smaller data set with more personal information. The Special Master ordered the parties to meet and confer concerning validation procedures since the Plaintiffs did not propose an alternative process.

The Defendants objected to a request to produce entire network directories known to contain some relevant data. The Special Master ordered the parties to meet and confer about instances where a discrete folder that is reasonably known to contain some relevant ESI may be too voluminous to make a review of each file proportional to the needs of the case.

2d Cir.: Production Cannot be Compelled Under 28 U.S.C. §1782 for Private International Arbitrations

Today, the Second Circuit issued a decision, In Re: Application and Petition of Hanwei Guo for an Order to take Discovery for Use in a Foreign Proceeding Pursuant to 28 U.S.C. 1782, No. 19-781 (2d Cir. July 8, 2020) affirming a district court's denial of a petition under 28 U.S.C. § 1782 for an order compelling the production of documents for a private international commercial arbitration. The arbitrator in this case was the China International Economic and Trade Arbitration Commission (CIETAC). 28 U.S.C. § 1782(a) allows federal courts to compel the production of materials “for use in a proceeding in a foreign or international tribunal”.

The Court noted that the legislative history of the statute indicates the phrase 'foreign or international tribunal' should not apply to private arbitration. The relevant House and Senate reports do not make any reference to alternative dispute resolution. The opinion notes that while the Fifth Circuit has issued a ruling also finding that § 1782 should not apply to private arbitrations, the Sixth Circuit has found that it does, and the Fourth Circuit has ruled that it should apply to private arbitrations in the United Kingdom because such arbitrations are authorized by the government pursuant to a statute. The Court found that the ruling of the Supreme Court in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004) which found that Directorate General-Competition of the Commission of the European Communities (a public entity) was a tribunal under § 1782 to the extent it acted as a first instance decision maker, did not address the issue of whether a private arbitration tribunal should be covered by § 1782.

In determining whether or not a CIETAC arbitration is a private international commercial arbitration, the Court considered multiple factors to evaluate if it functions as such an entity. CIETAC operates independently of the Chinese government. The arbitrators do not have to be affiliated with the Chinese government and there is only a limited basis on which government authorities can interfere with arbitrations beyond the enforcement of awards. CIETAC only receives jurisdiction over a dispute from the parties. Consequently, Judge Debra Ann Livingston's opinion concluded that CIETAC matters should be considered private arbitrations that are not covered by § 1782.

Some States Qualify Duty of Technology Competency

The ABA's Model Rule 1.1 imposes on a duty of technology competency on attorneys, and has been adopted in most states. Comment 8 to the rule states that, "To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject." See the Litigation Support Tip of the Night for May 9, 2016.

Some states which have adopted these rules have qualified the language in Comment 8 requiring knowledge of legal technology.

The Supreme Court of the State of New Hampshire states in its court rules with respect to Comment 8 that:

"This broad requirement may be read to assume more time and resources than will typically be available to many lawyers. Realistically, a lawyer should keep reasonably abreast of readily determinable benefits and risks associated with applications of technology used by the lawyer, and benefits and risks of technology lawyers similarly situated are using."

Supreme Court of New Hampshire Order, dated Nov. 10, 2015 at p. 51, available at: https://www.courts.state.nh.us/supreme/orders/11-10-15-Order.pdf

So, a lawyer is bound to both have knowledge of the electronic discovery methods he or she uses, or those used by attorneys practicing in the same field.

In New York, Comment 8 to Rule 1.1 states that:

"To maintain the requisite knowledge and skill, a lawyer should (i) keep abreast of changes in substantive and procedural law relevant to the lawyer’s practice, (ii) keep abreast of the benefits and risks associated with technology the lawyer uses to provide services to clients or to store or transmit confidential information, and (iii) engage in continuing study and education and comply with all applicable continuing legal education requirements under 22 N.Y.C.R.R.Part 1500."

New York Rules of Professional Conduct, Effective April 1, 2009, As amended through June 1, 2018, at p. 13, available at: https://nysba.org/NYSBA/Practice%20Resources/Professional%20Standards%20for%20Attorneys/Professional%20Standards%20for%20Attorneys/Rules%20of%20Professional%20Conduct%20as%20amended%20060118.pdf

There is a special emphasis placed on keeping client data secure.