E-Discovery Trends . . . Straight from the Bench
Yesterday I watched a very interesting online presentation hosted by Exterro. I recommend you watch it here: http://www.exterro.com/resources/2015-mid-year-e-discovery-case-law-review/ . The main speaker was Chief Judge Joy Conti of the U.S. District Court for the Western District of Pennsylvania. Judge Conti emphasized the following:
1. After the amendments to the Federal Rules of Civil Procedure become effective on December 1, 2015, there will be a much greater emphasis on proportionality in discovery requests and responses. A recent decision in the S.D. Cal. on the need for counsel to supervise its clients' ESI search methodology, HM Electronics v. R.F Technologies has already made reference to the new version of FRCP.
2. She noted that despite the developments in Rio Tinto v. Vale encouraging transparency between parties with respect to predictive coding seed sets, she has not seen many predictive coding cases in her court.
3. A decision by the S.D. W. Wa. in Burd v. Ford Motors Co. this July, held that the data collection process is not protected by the work product doctrine and that 30(b)(6) depositions may be held with regard to the reasonableness of searches. The parties should attempt different ways to cooperate before they move for sanctions.
4. The new amendments will stress that the electronic discovery process be more cost efficient and less secretive. Judge Conti believes there will be more cooperation between parties than has been seen in the past.
Other participants on the call made note of the N.D. Cal decision this past May in Clear-View Technologies v. Rasnick that a duty to preserve may be triggered by a threat to sue made in a text message even if that message is followed the next day by an apologetic text which doesn't make an explicit retraction of the threat. The failure to preserve in this case led to a permissive adverse jury instruction.