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Allysia Edwards

Spoliation Sanctions and Prevention Strategies

Emails, Slack messages, tweets, and digital documents are just a few data types that a company may generate on a daily basis. Thankfully, businesses aren’t required to store all electronic records indefinitely. A party, however, must preserve evidence before litigation begins or whenever the party suspects the information may be relevant to anticipated litigation. Spoliation refers to the failure to preserve relevant information during contemplated or pending litigation. According to the FRCP, intentional spoliation may result in dismissal of action, default judgment, or court/jury presumption that the missing information was unfavorable to the responsible party. If unintentional, the court may impose measures no greater than necessary to cure the prejudice. [1] Though the FRCP offers examples, sanctions may be imposed at the court’s discretion. Other sanctions for spoliation may include monetary fees, precluding a party from introducing other evidence, and a motion to strike out pleadings. [2]

Strategies for Preventing Spoliation

  • Identify all potentially relevant evidence by considering the mediums and locations in which the data may be stored. This can be done by questioning potential custodians through questionnaires or personal interviews. Be mindful that relevant evidence can come in various forms: videos, emails, Word documents, social media posts, etc.
  • Utilize a litigation hold to instruct employees against deleting relevant information. Make sure to send the litigation hold to the IT department if any automated deletion programs need to be stopped.
  • After sharing the litigation hold, issue reminders to custodians of its existence. Merely having the memorandum may not be enough to avoid sanctions. Thus, companies should remind custodians to fully comply with the instructions. [3] Companies may also opt to require written confirmation from employees to confirm they have received the litigation hold.
  • Check your employees’ understanding of their preservation obligations. This can be done by leaving space for questions and confusion surrounding the litigation hold’s instructions.
  • Properly collect and store your ESI. It may be wise to make copies of any relevant information. [4]
  • If necessary, hire an independent expert for the collection and production process. Doing so will reduce your risk of spoliation greatly. If spoliation still occurs, employment of the expert may be considered as evidence of the company’s good faith. [3]

[1] “E-discovery and the Duty to Preserve,” Constangy Brooks, Smith & Prophete LLP, June 20, 2016.

[2] Michael W. Mitchell and Edward Roche, “Lessons Learned: Destroying Relevant Evidence Can Be Catastrophic in Litigation,” Smith Anderson, August 6, 2020.

[3] Rebecca Edelson, Seong Kim, and Angela Reid, “3 Steps in Furtherance of Avoiding Devastating Spoliation Sanctions In Trade Secret Misappropriation Litigation,” Mondaq, December 9, 2019.

[4] James Floyd Jr. and Ryan Owen, “Don’t Delete That Data! Actions Required to Satisfy Document Preservation Obligations,” JD Supra, October 26, 2021.

Getting the Most out of Your Keyword Searches

Though a more basic searching technique, keyword searches allow professionals to identify one or two specific words from multiple documents. Nowadays, keyword searches are considered inferior to the successor, predictive coding (TAR). In comparison to TAR, the “outdated” search method is more expensive and time-consuming. Keyword searches are also less predictable; when filtering through the same data set, keyword searches yield fewer results. Based on these flaws, some would argue that keyword searches are a dying technique. So, why bother talking about them at all? Though keyword searches have their flaws, they are far from obsolete. Some legal teams prefer to utilize manual review, recognizing it as a tried-and-true method. For example, the defendants in Coventry Capital U.S., LLC v. EEA Life Settlements, Inc. attempted to use TAR in 2020 to resolve the fraud case, but they argued the process was “protracted and contentious.” Thus, Judge Sarah L. Cave declined to compel the inclusion of TAR. [1] Similar outcomes occurred in cases such as Hyles v. New York City (2016) and In re Viagra (Sildenafil Citrate) Prods. Liab. Lit. (2016). In both cases, the court refused to mandate the usage of TAR when the responding party demonstrated a clear preference for keyword searching. [2] With this knowledge in mind, it’s important to recognize that keyword searches are still effective when done right.

Five Tips for Effective Keyword Searches

  1. Good communication is crucial.

Consult your custodians before running your searches. Use the conversations to identify any specific terms or abbreviations that may be relevant to your review. If necessary, you may also need to speak with an experienced advisor. Through their expertise, they can assist you with the sampling and testing process. Advisors are a great way to save time and money for everyone involved.

  1. Create and test your initial set of terms.

Everyone has to start somewhere. Your initial search terms don’t have to be perfect. While constructing your list, estimate how many results you expect each term to yield. Once you’ve run your test, evaluate how the search results compare to your expectations. If you received significantly fewer results than anticipated, adjust the search terms as needed. You may have to refine your search list multiple times. Anticipate this possibility to avoid missing any deadlines.  [3]

  1. Limit searches that include wildcards and/or numbers.

When searching for words with slight differences, it’s better to search for each variation rather than use wildcards. For example, you should set up individual searches for “email” and “emails” instead of using “email*” as a search term. Numbers can also be a problem if not done correctly (i.e. searching for the number 10 will show results for 100, 1 000, etc.). Make sure to place the number in quotes to avoid this issue.

  1. Count the characters.

Search terms with four or fewer characters are likely to yield false hits. Short words or abbreviations like HR or IT may be identified in longer, unrelated results. Filtering out the false hits requires extra review time and money.

  1. Know how to search for names properly.

Avoid searching for custodian names. Their name will most likely be attached to more documents and hits than expected or desired. When searching for non-custodians, place “w/2” between their first and last name. Doing so will show all variations of the full name. Finally, consider searching for nicknames to get even more results. Ask the client what nicknames they respond to before making your search term list. [4]

 

[1] Doug Austin, “Court Rules for Defendant on TAR and (Mostly) Custodian Disputes: eDiscovery Case Law,” eDiscovery Today, January 12, 2021.

[2] “How Courts Treat ‘Technology Assisted Review’ in Discovery,” Rivkin Radler, March 13, 2019.

[3] “Improving the effectiveness of keyword search terms,” E-discovery Consulting, November 11, 2021.

[4] Kathryn Cole, “Key Word Searching – What Is It? And How Do I Do It (Well)?,” All About eDiscovery, December 9, 2016.

Four Tips for Successful Meet and Confers

When approaching any challenge or goal, it’s often best to start with the big picture before narrowing things down. By working backwards, you can identify the steps needed to achieve the desired result. This type of thinking can be applied to Rule 26(f) conferences (also known as meet and confers). As mandated by Rule 26(f) of the FRCP, both parties must meet at least 21 days before holding a scheduling conference. The purpose of the meet and confer is to discuss litigation details such as data preservation, privilege issues, the form of production, and expenses. To get the ball rolling, counsel can prepare a list of general questions: What data types need to be collected? How should the scope of discovery be defined? What pace is needed to meet court-established deadlines? General questions like these build a solid foundation for deeper inquiries and concerns. [1]

More Tips for Meet and Confers

  1. Initiate the conference early.

The meet and confer process is not something that can or should be rushed. Negotiation takes time, patience, and multiple attempts. Waiting until the last-minute benefits no one. Instead of frantically rushing to meet deadlines, schedule the meet and confer as soon as possible. Sometimes, counsel is hesitant to meet early because they feel that they don’t have enough information and prep time. Thus, in addition to meeting early, parties should also meet often. Multiple conferences allow the parties to fully understand and iron out the details.

  1. Identify and evaluate the accessibility of relevant data types.

Companies interact with a variety of data types on a daily basis – email, Facebook, Zoom, the list goes on. Producing each one would be burdensome, expensive, and unnecessary. Only focus on relevant data types that are proportional to the needs of the case. Companies also regularly create and destroy large volumes of information. Therefore, you must assess their data retention policies to determine what information is stored and where. Once that’s settled, consider whether the data types are too expensive or inaccessible for production.

  1. Walk in with the right mindset.

Compromise is impossible to reach without flexibility from both parties. At the same time, neither party should feel obligated to concede to all proposals. Meet and confers should be thought of as open dialogues. Discuss, debate, and engage in respectful arguments when necessary. Above all, cooperate by ensuring your suggestions are reasonable and proportional. [2]  If this aspect is a concern, consider hiring a discovery expert. Through their industry knowledge, experts can assess the opposing party’s discovery systems and requests.

  1. Understand your client’s data policies and systems.

Before heading into the meet and confer, try to gather as much information as possible. Ask your client if they have any formal information governance policies. If not, probe further to identify how and where their data is stored. It’s also important to identify the person or department in charge of storing said data. The client’s IT environment must be understood as well. Inquire about the quantity and locations of company computers. Additionally, request information about the company’s software programs, backup schedules, data custodians, etc. [1]

 

[1] Ronald I. Raether Jr., “Preparing for the Rule 26(f) Scheduling Conference and Other Practical Advice in the Wake of the Recent Amendments to the Rules Governing E-Discovery,” The Federal Lawyer, August 2007.

[2] Scott Devens, “Defensible Strategies for the ‘Meet and Confer,’” Bloomberg Law, Oct. 18, 2011.

Increasing Your Technological Competence, Part 2

Collaboration apps, forensic tools, and discovery software are just a few technologies that an attorney must juggle regularly. As old technologies update and new ones emerge, will you adapt or fall behind? At first, keeping up with these changes may seem impossible, but there are multiple steps you can take. Brush up on your knowledge by reading case law, eDiscovery blogs, and regulations on data collection. Learn more about the retention policies for popular social media and messaging platforms. Discuss industry news and trends at conferences or with colleagues. [1] The list goes on. In 2015, the California Bar committee weighed in on the topic, providing a list of 9 skills needed for technological competence. In part 1 of this mini-series, we discussed the first five skills listed by the committee. As the last segment on increasing technological competence, this blog will identify the final four skills.

Explanations of the Final Four Skills

  1. Engage in a competent and meaningful Meet and Confer with opposing counsel concerning an eDiscovery plan.

Industry knowledge and open-mindedness are the key to any successful Meet and Confer. If both sides lack these aspects, compromise will be difficult to achieve. For the knowledge aspect, lawyers must be well-versed in technical skills and ESI investigative practices. Technical skills are useful for resolving processing and production issues. Familiarity with the best practices for eDiscovery will also save you time, money, and headaches.

  1. Perform data searches.

Before conducting a data search, litigants must decide their search method: keyword searching and/or predictive coding (TAR). As the traditional approach for document review, keyword searches are often seen as the safer choice. Though filters and queries can be used to refine the searches, studies have shown that TAR is more effective and cost-efficient. In fact, litigants who opt for TAR over keyword searches save 50 to 70 percent in review costs. [2] Though both approaches can be used at once, the order of usage is important. In FCA US, LLC v. Cummins, Inc., No. 16-12883 (E.D. Mich. Mar. 28, 2017), Judge Cohn only permitted keyword searches after the TAR process was finalized. [3]

  1. Collect responsive ESI in a manner that preserves the integrity of the ESI.

While selecting the form of production, you must consider how the data and metadata will be presented. Typically, native files are preferred over static TIFF or PDF images because they preserve the document’s metadata. Though the requesting party may call for a specific form of production, the court can deny requests and issue sanctions for noncompliance. The integrity of the ESI is also impacted by the means of data collection. To ensure that the correct metadata fields (creation date, modification date, etc.) are shown, collect the evidence through appropriate forensic and eDiscovery software.

  1. Produce responsive, non-privileged ESI in a recognized and appropriate manner.

Through respectful communication and cooperation, parties must negotiate an ESI protocol that details production and review specifications. These specifications must include the required media types, format of production, and preferred review software. After agreeing on the most efficient methods and tools, disclose the negotiated discovery plan to the court. [2]

 

[1] Matthew Knouff, “How to Gain & Maintain Technology Competence — Element 1: Education — Part 1 of 3,” ESI Survival Guide, March 30, 2021.

[2] Hon. Joy Flowers Conti and Richard N. Lettieri, “E-Discovery Ethics: Emerging Standards of Technological Competence,” The Federal Lawyer, 2015.

[3] Doug Austin, “Court Determines TAR Without Keyword Search Culling First is Preferable: eDiscovery Case Law,” CloudNine. https://cloudnine.com/ediscoverydaily/electronic-discovery/court-determines-tar-without-keyword-search-culling-first-preferable-ediscovery-case-law/?pg=ediscoverydaily/ethics/increasing-your-technological-competence-part-2/

Increasing Your Technological Competence, Part 1

From the CloudNine family to yours, we wish you a wonderful holiday season! As a gift of knowledge, this article will focus on defining and maintaining high levels of technological competence. To effectively represent their clients, a lawyer must actively update their knowledge on legislative changes. The American Bar Association referred to this skill in Rule 1.1 as “competence.” The rule originally called for lawyers to possess the “legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” [1] In 2012, the ABA expanded the definition through an amendment concerning technological competence. According to Matthew Knouff from ESI Survival Guide, 39 states adopted this rule in some form by March 2021. South Dakota, Rhode Island, Oregon, New Jersey, Nevada, Mississippi, Maryland, Maine, Hawaii, Georgia, and Alabama are the main exceptions to this trend. [2] Though Rule 1.1’s amendment laid out the framework, it didn’t provide instructions on how lawyers should build their technological competence. To achieve this duty, the California Bar committee issued an opinion, outlining 9 necessary skills. Since this opinion was crafted through examinations of federal cases, these skills could be applicable to various states.

Explanations of the First Five Skills

  1. Initially assess e-discovery needs and issues, if any.

In fear of the cost and rules of e-discovery, some lawyers try to avoid the practice altogether. By doing so, lawyers disadvantage their clients by missing out on relevant ESI. Instead of yielding to eDiscovery trepidation, conduct an initial assessment to determine the cost, timeframe, and data types needed for the investigation. Consider the value of the claims in comparison with the costs of processing and production. Determining which data types must be collected and how much time is allotted for the process. These examinations can act as a starting point in assessing the proportionality of the production request.

  1. Implement or cause to implement appropriate ESI preservation procedures.

To accomplish this skill, lawyers should acquaint themselves with their client’s IT setup. Once the preservation responsibilities have been established, clients and custodians should be informed with clear, written instructions. It’s important to follow up with clients and custodians to ensure that they are complying with the preservation requirements to avoid spoliation sanctions. If requesting ESI from opposing counsel, send a preservation letter that identifies what data should be preserved and where it can be found.

  1. Analyze and understand a client’s systems and storage.

Get familiar with your client’s IT environment and staff. It’s beneficial to request data maps of complex systems and speak directly to the IT staff. Through this knowledge and ease in communication, lawyers will gain a better sense of where relevant ESI may lie. After determining the location of the data, one can access how difficult and/or expensive it will be to access the information.

  1. Advise the client about available options for collection and preservation of ESI.

The scope and cost of preservation might be huge when dealing with larger companies due to their larger volumes of data and longer lists of custodians. However, lawyers should not concern themselves with burdensome collections unless the information is proportional to the case. During Rule 26(f) conferences, consult opposing counsel on the scope of discovery in relation to the costs of collection and production. If the parties determine that the discovery request is disproportional, seek guidance from the court.

  1. Identify custodians of relevant ESI.

After identifying the custodians who possess relevant data, categorize the list into two categories: primary custodians and secondary custodians. As the terms suggest, primary custodians have more direct involvement with the information than secondary custodians. To save money, counsel can decide to initially search for primary custodians within a limited time frame. If necessary and proportional, the search can be expanded to encompass secondary custodians. [3]

 

[1] Model Rules of Professional Conduct Rule 1.1

[2] Matthew Knouff, “How to Gain & Maintain Technology Competence — Element 1: Education — Part 1 of 3,” March 30, 2021.

[3] Hon. Joy Flowers Conti and Richard N. Lettieri, “E-Discovery Ethics: Emerging Standards of Technological Competence,” The Federal Lawyer, 2015.

Need a Data Retention Policy? Here’s How to Build One

Now that most industries are going paperless, companies must create a comprehensive data retention policy. The purpose of a data retention policy is to establish procedures for labeling, storing, and deleting electronic (and physical) records. [1]  Most companies acknowledge the need for a retention policy, but they don’t commit to creating one. A 2000 ABA study found that 83% of the responding companies had no established protocol for handling discovery requests. Despite this unsettling statistic, 77% of the companies expected discovery requests to increase in the future. [2]  Many reasons support the need for comprehensive retention policies. One of the most pressing reasons is the explosion of ESI in recent years. For instance, corporate email alone is estimated to increase annually at a compounded rate of over 13%.  Without a data retention policy, an organization in the midst of litigation would be responsible for organizing large volumes of data with little time to do so. By proactively developing data management policies, companies will avoid the pressures of looming deadlines. Ensuring that information is properly handled also minimizes a company’s risk for sanctions. [1]  The following is a list of steps and suggestions for developing a data retention policy.

  • Do your research on relevant laws

Certain state and federal laws mandate specific preservation and deletion practices. HIPAA and GLBA are older examples of ESI regulations enacted in the late 1990s. However, states are constantly reviewing and revising their ediscovery laws, so it’s important to stay on top of any legislation changes.

  • Determine when to archive or delete data

While corporations are not expected to store every single electronic document, deletions must be orderly and purposeful. The practice of strategically deleting unneeded data is referred to as “defensible deletion.” When done correctly, defensible deletion is cost-efficient, storage-friendly, and most importantly, legal. Defensible deletion is protected by Rule 37(e) of the Federal Rules of Civil Procedure (FRCP). The rule prohibits sanctions against electronic records that were lost during good-faith deletion procedures. [3]

  • Review how your data is housed

In this step of the process, it’s important to ask what, where, and how. What data types are being stored, and how should they be classified (i.e. social media, email, transactions)? What are the retention policies for each medium? What’s the purpose of preserving this information? Where is it being stored, and does this location need to be changed to a better one? How long does the data need to be stored in order to comply with applicable state and federal laws?

  • Monitor your policy

Regularly review your policy to ensure that your company is following its outlined regulations. If you notice that your company is deviating from the policy’s storage and deletion procedure, fix the issue as soon as possible to minimize any legal risks. Routine audits also make it easier to make policy adjustments as needed.

  • Assign accountability

Determine who will be responsible for enforcing the policy throughout the company. This person or department must be well-versed on the policy’s provisions, and they must be ready to testify in court about the company’s retention procedures. [2]

  • Limit your paper trail

Consider a provision that requires electronic copies of physical documents. Some companies are still hesitant to transition to completely paperless operations. Though this hesitancy is understandable, it’s recommended to save an electronic version of all paper records. This suggestion is merely that, just a suggestion. Completely converting to electronic records is not a mandatory step in creating an effective data retention policy. However, this step would speed up the process of identifying relevant data for litigation. [1]

[1] Carlos Leyva, “Data Retention & eDiscovery,” Digital Business Law Group.

[2] “Document Retention & Destruction Policies for Digital Data,” Applied Discovery, LexisNexis, 2004.

[3] Law Offices of Salar Atrizadeh, “Electronic Discovery and Data Retention Policies,” Internet Lawyer Blog, May 18, 2020.

Understanding and Managing eDiscovery Costs

For a medium-sized lawsuit, eDiscovery costs can range anywhere from 2.5 to 3.5 million dollars. [1] This price has been exacerbated by the effects of COVID-19 on communication data. According to the International Legal Technology Association (ILTA), the pandemic has created a data explosion by encouraging frequent usage of chat applications. Meanwhile, the levels of email and other data types have remained constant. [2] As time passes, the list of communication types will continue to expand with new collaboration tools and social media platforms. On one hand, these changes have made communicating with loved ones and coworkers easier than ever. On the other hand, the influx of modern data types has created an expensive headache for legal teams.

Current Approaches to the Problem

To handle litigation costs, companies often try to cut labor costs, increase review rates, and group documents together. However, each of these approaches can only do so much. For instance, it’s risky for companies to save money through temporary attorneys or LPO companies. Though the strategy is cost-efficient, it creates new challenges surrounding logistics, data security, attorney-client privilege, and oversight. The second method was increasing the speed of review. This method holds some promise, but its efficiency depends on the type of review. Automated review is great at accelerating the process, but human review speeds are harder to manage. At best, an expert review can review 100 documents per hour. Yet, the benefit of speed comes at the chance of comprehension errors. Grouping documents isn’t an efficient solution either. The technique uses computerized technology to categorize similar documents together. Though this method is good for organizational purposes, it does nothing to minimize the volume of data. [3]

Cost-Saving eDiscovery Strategies

  1. Don’t spend too much time on search term negotiations. It’s easy for opposing parties to lose time and money while fretting over each search term; however, this practice forces counsel to work overtime to meet deadlines. Consequently, companies will have to pay higher attorney fees. The best solution would be to agree on a handful of search terms and run the data through machine learning systems for review.
  2. Avoid overusing issue coding. Though issue codes are useful for organizing documents, excessive issue coding makes the review process slower and more expensive. Consider limiting the codes to 8-10 per document.
  3. Eliminate unnecessary attachments from important documents (i.e. company logos and icons). These attachments can be eliminated manually or through a modern data processing system. [4]
  4. Engage in the discovery process as soon as possible. By contacting legal counsel early on, companies can reduce the time and money needed for processing and review.
  5. Stay prepared for the possibility of litigation by instructing employees on storing and accessing important documents. This method will save time and money by making the documents easier to find. [5]

 

[1] “Reducing eDiscovery Costs” Whitepaper, Canon Discovery Services, 2018.

[2] Sarah Gayda, “How Law Firms Can Proactively Reduce eDiscovery Risk & Cost,” Iltanet, May 21, 2021.

[3] Nicholas M. Pace, Laura Zakaras, “The Cost of Producing Electronic Documents in Civil Lawsuits,” RAND Institute for Civil Justice, 2012.

[4] Lisa Prowse, “Review is Not the Most Expensive Part of E-discovery,” KMWorld, October 29, 2020.

[5] Scott Carvo, Madelaine C. Lane, and Janet Ramsey, “Creative Ways to Cut Down on E-discovery Costs,” Grand Rapid’s Business Journal, September 4, 2020.

Document Review in a Remote World

COVID-19 has transformed the document review process. Traditionally, document review was conducted in person by experts at review centers. As COVID-19 rates increased, fears for individual health and safety mandated the transition to remote review. Though remote review became a sudden necessity, it’s not a new concept. The transition began long before the pandemic at a slow but steady pace. More and more organizations transitioned their discovery to the cloud after recognizing the financial and security benefits. Even without the pandemic-induced acceleration, the trend would have accumulated more momentum with time. Nonetheless, organization that were unprepared or on the fence were suddenly faced with new challenges and security demands. No one knows if remote review will be the new “normal.” It’s too soon to judge the permanency of the change. For now, organizations should recognize the benefits of the opportunity and adjust their review procedures accordingly.

The Benefits of Remote Review

  • Through remote operation, document review has become more flexible than ever. Talented experts from various states can provide their expertise. Organizations with remote review are not restrained by geographical limitations when seeking qualified providers. The geographic freedom also eliminates the need to pay for a provider’s travel and lodging.
  • Providers have shown increased morale and productivity due to greater flexibility with their hours and breaks. They are also spared from commute expenses. Through happier employees, organizations can raise the efficiency of their review process.
  • Through remote review, organizations gain cloud scalability. Resources and storage space can be altered to quickly meet changing demands.
  • By reducing the production of discoverable copies, remote review can offer some security advantages. Organizations can also strengthen their  security by using multifactor authentication tools. [1]
  • Remote review minimizes the risks associated with employee movement. The workforce is like a revolving door; new employees constantly join and leave their jobs. Though this cycle is normal, it often leads to the accidental corruption or destruction of valuable data. Since remote review is convenient and flexible, it often improves employee retention. [2]

Tips on Handling Document Review

  • Optimize communication among counsel, reviewers, and clients through collaboration tools and teleconferences.
  • Collaborate with your team to create a comprehensive plan tailored to your security and operation needs. This plan should address topics such as staffing, training, and oversight measures.
  • Before establishing a review plan, ask your providers about the quality of their review space and security measures. [3]
  • Consult with your clients and partners as you draft your remote review policies.
  • Keep your data secure through a VPN, multifactor authentication tool, and/or an access program. [4]

 

[1] David Greetham, “Remote eDiscovery: Pandemic Accommodation or Improvement,” Above The Law, May 29, 2020.

[2] Antonio Rega, “Understanding the E-Discovery Implications of Employee Status Changes,” Today’s General Counsel, April 7, 2014.

[3] Jonathan Hurtarte, “Insight: Covid-19 and E-Discovery Challenges With Remote Document Review,” Bloomberg Law, May 11, 2020.

[4]  SKJ Juris, “Impact of Covid-19 on Remote Document Review,” SKJ Juris, 2020.

Assessing the Proportionality of Modern Data Types

The Costs of eDiscovery

As time passes, the definition of electronically stored information (ESI) must expand to accommodate emerging data types. As discussed in our recent article, (Don’t Get Spooked by Communication Applications!), these changes can be intimidating and uncomfortable for some legal teams. Since modern data types are unavoidable in eDiscovery, litigators must adapt and address any subsequent challenges. Financing the production of newer ESI types is a looming concern for many firms. From a financial perspective, each gigabyte of reviewed data costs about $18,000. [1] Meanwhile, 300 million photos are posted to social media every day, and 16 million texts are sent every minute. [2] In addition to paying for production, responding parties must  have adequate access and resources to manage the information. If responding parties cannot juggle these duties, they should speak with the judge and requesting party about the proportionality of the evidence.

Proportionality and Amendments to Rule 26(b)(1)

Before requesting the production of digital evidence in a legal trial, the proportionality of said evidence must be evaluated. In other words, the costs and benefits of production must be weighed. Proportionality is far from a new concept in eDiscovery. Most of its factors and considerations were first added to Rule 26(b)(1) of the FRCP in 1983. On December 1, 2015, the rule was amended slightly to require that the scope of discovery be “proportional to the needs of the case.” [3] Six factors should be considered when evaluating the proportionality of ESI:

  • The importance of the issues at stake in the action – This guideline measures the importance of the non-monetary losses or gains that a party might acquire due to a case (i.e. time, resources).
  • The amount of controversy – This guideline focuses on the money that a party may gain or lose.
  • The parties’ access to relevant information – The need for a formal discovery is determined based on a party’s access (or lack thereof) to relevant information.
  • The parties’ resources – A party’s technological, administrative, and human resources are assessed to determine if they are capable of handling the discovery process.
  • The importance of the discovery in resolving the issues – This guideline relates to the discovery’s importance in resolving the case.
  • Whether the burden or expense of the proposed discovery outweighs its likely benefit – The burdens and benefits of discovery are compared. There is no fixed ratio to determine the proportionality. [4]

Proportionality Best Practices

  • Parties should engage in discovery planning early on. Discussions on the relevance and proportionality of the request should be held as soon as possible.
  • Prior to Rule 26(f), meet in person (or over the phone) to develop a discovery management plan.
  • Ask the judge to hold Rule 16(b) case-management conferences.
  • If you anticipate proportionality disputes or the production of voluminous data, start the discovery process by producing the most accessible and relevant information . [4]

 

[1] Patrick E. Gaas and Tiffany Harrod, “How to Proactively Control E-discovery Costs,” Tech Brief, AGC of America.

[2] Bernard Marr, “How Much Data Do We Create Every Day? The Mind-blowing Stats Everyone Should Read,” Forbes, May 21, 2018.

[3]Rule 26. Duty to Disclose; General Provisions Governing Discovery,” Legal Information Institute, Cornell Law School,

[4] Bolch Judicial Institute, “Guidelines and Best Practices for Implementing the 2015 Discovery Amendments Concerning Proportionality,” Third Edition, 2021.

How COVID-19 Has Reinforced the Need for Comprehensive BYOD Policies

Even before the pandemic started, working from home was on the rise. The trend allowed employees to be both productive and comfortable. Like any change, the transition to remote work was met with some skepticism. Many worried that limited in-person interaction would negatively impact work relations and company culture. Another concern was that employees wouldn’t get their work done at home. Though the research is mixed, several studies suggest that working from home greatly improves productivity. Amid the controversy, remote work skyrocketed as quarantine guidelines were set in the United States. This shift boosted the popularity of BYOD policies in the workplace. BYOD is shorthand for “bring your own device,” a practice in which businesses allow employees to conduct work activities on personal devices.

From both the employer and employee perspectives, BYOD policies come with a list of pros and cons. Employees typically enjoy the change, grateful that they don’t have to carry two phones everywhere. BYOD allows them to conveniently handle business and personal affairs from the same device. Through this system, an employee can work from anywhere at any time. From the employer’s standpoint, BYOD practices can be a money saver. Companies that supply and maintain work phones are expected to foot the bill. BYOD, however, eliminates those business expenditures.[1] In terms of ediscovery, BYOD poses significant privacy and security concerns. Now more than ever, companies should reevaluate their BYOD policies, ensuring that sensitive data is well-protected.

Questions to Consider

Before drafting or revising BYOD policies, there are several questions that a company should ask itself. Below is a list of sample questions to get the ball rolling:

BYOD Recommendations

  • Ask new employees about the BYOD policies at their former jobs. If the employee previously used their personal device for business matters, their device could still contain competitor data. Detecting and eliminating competitor data early on reduces the risk of lawsuits. [2]
  • Pay particular attention to securing data from your legal department. Legal departments, specifically, are a popular target for hackers because they manage large amounts of sensitive information.
  • Consider setting time limits on employee access to highly sensitive material.
  • Consider an employee’s position in the company before allowing them to operate through a personal device. If their position requires consistent interaction with confidential information, it’s safer to supply them with a work phone. [3]
  • Outline any software and applications that employees should not use.
  • Establish protocols for litigation holds and employee departure. [1]
References

[1] Russell Beets, “BYOD (Bring Your Own Device) Policies and Best Practices,” LitSmart E-Discovery, November 17, 2017.
[2] Will Kelly, “BYOD and the danger of litigation” TechRepublic, November 3, 2015.
[3] Frank Ready, “When Should Companies Refresh BYOD Policies? With COVID-19, It’s Now” Legaltech News, July 16, 2020.

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