Today I was at the Legal Tech show at the Hilton in Manhattan. I attended a panel with Magistrate Judge Andrew Peck of the U.S. District Court for the Southern District of New York; Judge Elizabeth LaPorte of the U.S. District Court for the Northern District of California, and Magistrate Judge James Francis of the U.S. District Court for the Southern District of New York. One year ago, I attended a panel at Legal Tech involving the same judges. Tara Emory of Driven hosted the panel this year.
Judge Peck placed great emphasis on the importance of a 502(d) order to guard against the waiver of privilege when producing documents. He described it as a 'get of jail free card'. The proposed order available on his site provides the broadest possible protection under 502(d) in paragraph 1, and paragraph 2 provides for sufficient time to review for privilege. He said it was akin to malpractice not have a 502(d) order in place.
Judge LaPorte discussed how the fear of making a mistake can lead parties to over preserve data. If parties put certain topics off limits at a case management conference they won't be questioned later on the failure to preserve such data.
Judge Peck stressed the importance of showing the relationship between search terms and discovery requests. There may be no way to produce a company's database, but it may be possible to export aspects of the database's content. Judge Francis suggested that a 30(b)(6) deposition might be necessary to determine how to produce a database, but Judge LaPorte preferred using a sample report to determine the scope of production rather than resorting to a deposition.
Judge Francis discussed how it might be possible for parties to cooperate on the use of search tools - even to the extent of letting the other side train a TAR system. Judge Peck noted that while here may be disclosure of collection, search, and review strategies, parties zn exchange these without needing to disclose them for future litigation.
Judge LaPorte talked about how tiered discovery involves prioritizing review of certain documents, not necessarily limiting the review. ESI agreements can specify particular custodians for review. Judge Peck said that parties should always let the court know what is happening in tiered discovery beforehand, but this approach will commonly be approved and save time, but not if parties have to later justify their steps to the court. Judge Francis explained that the tiered approach should narrow what is needed to reviewed at each successive step.
Judge Peck noted that for cross border discovery under EU data regulations, the implementation of a hold constitutes processing. The General Data Protection Regulation has provided damages equal to 4% of gross global revenue for certain violations. This will enter into effect in 2018. Judge Peck felt that in the past courts have held the attitude that damages assessed under past EU regulations would be minimal or unlikely to be implemented at all. He said that parties should not use EU data privacy laws as an excuse not to make productions at all.
Judge Peck discouraged attorneys from filing 25 page motions on why discovery requests are overboard.
In forming agreements, Judge Francis said parties should go for the low hanging fruit first and settle issues that are easy to agree on, in order to build momentum. Judge Peck criticized attorneys for being reluctant to involve their clients in discovery issues. Judge LaPorte recommended the discovery checklists she has for her jurisdiction. I believe she had this in mind: https://www.cand.uscourts.gov/filelibrary/466/Initial%20Discovery%20and%203rd%20Party%20Data%20Assessment%20Checklist.pdf
Judge Francis referred to the Progressive Casualty Ins. Co. v. Delaney (D. Nev. May 20, 2014) as an example of how not handle agreements on document searching. In this case, from a set of 1.8M documents, the parties' original agreement led to them having to review 565K documents manually. The producing party panicked and made a unilateral decision to use TAR. Judge Francis suggested that protocols should provide for a meet and confer when parties needed to depart from the protocol itself. He thought that the court was incorrect to treat the protocol as ironclad, and believes such agreements should by their nature be flexible. Judge LaPorte found fault with the producing party in Progressive for not following a vendor's best practices.