Want to Get Primed for TAR? The Sedona Conference Has You Covered

technology_tablet_000079371467_LargeThe Sedona Conference recently announced the release of its Technology Assisted Review (TAR) Case Law Primer. While this final version of the primer will be published in the Summer 2017 Sedona Conference Journal, the final/prepublication edition can be downloaded at no charge here.

Why is this primer needed? As noted by The Sedona Conference’s deputy executive director, Ken Withers, TAR’s “widespread application – and the realization of its potential benefits – has been impeded by uncertainty about its acceptance by the courts as a legitimate alternative to costly, time-consuming manual review of documents in discovery.”

The primer traces the development of the case law to the present, discussing those first cases that tested the TAR waters. It also discusses the disputed issues garnering judicial attention, including whether TAR can be required, the use of keyword culling before application of machine learning and the transparency required when TAR tools are deployed. Continue Reading

If the Scope of Discovery Changed and No One Paid Attention, Did the Scope of Discovery Change?

Litigation_shutterstock_126537545The scope of discovery may be more limited than you think. The Cole’s Wexford opinion provides a thorough dissection of the history and past iterations of Rule 26 and a clear explanation of the status of the current rule as amended in 2015.

Judge Joy Flowers Conti, chief district judge of the U.S. District Court in the Western District of Pennsylvania, addressed the question of relevancy under amended Federal Rule of Civil Procedure 26 in this September 2016 decision involving a discovery dispute between Cole’s Wexford Hotel and Highmark (Cole’s Wexford Hotel v. Highmark, 2016 WL 5025751 (W.D. Pa. Sept. 20, 2016). In her decision, Judge Conti criticized the continued post-amendment reliance on the broad relevancy benchmark of Oppenheimer, writing that “discovery requests are not relevant simply because there is a possibility that the information may be relevant to the general subject matter of the action.”

In this discovery dispute, Cole’s Wexford had sought discovery concerning base insurance rates approved by the Pennsylvania Insurance Department and also the rates charged by the defendant, Highmark. The special master recommended that the court deny these requests, “because Cole’s Wexford did not satisfy its burden to show that the information it seeks is relevant under Federal Rule of Civil Procedure 26.” Continue Reading

‘Ancient’ Data (and Documents): Prepare for Federal Changes to a Long-standing Hearsay Exception

Focused businessman is reading through magnifying glass document

Unbeknownst to many, changes to the Federal Rules of Evidence governing the hearsay exception for ancient documents (FRE 803(16)), and additional rules governing self-authentication of evidence generated by electronic processes or systems (FRE 902(13)) and self-authentication of data copied from electronic sources (902(14)), are slated to become effective in 2017. These proposals are intended to address potential evidentiary issues arising out of the long-term storage of electronic evidence and unnecessarily cumbersome processes for authentication of electronic evidence.

This post discusses the proposed changes to the hearsay exception for ancient documents. The proposal is interesting because it addresses a fear that has yet to materialize – namely, that electronically stored information older than 20 years will be admissible for the truth of its content under current FRE 803(16).

A Refresher on the Ancient Documents Exception

While it is hard to think of many things – or indeed anything – that can become more reliable with age, the original framers of the ancient documents exception to the hearsay rule felt differently about documents. Federal Rule of Evidence 803(16), commonly referred to as the “ancient document rule,” provides an exception to the hearsay bar for documents that are at least 20 years old. The original rationale behind this rule was that documents of a certain age are more reliable and trustworthy. See Advisory Committee note (“age affords assurance that the writing antedates the present controversy…”).

Of course, this rule was adopted long before electronically stored information was omnipresent in litigation. But even as to paper, according to the Advisory Committee on Evidence that recommended changes to the rule, the rationale for the rule “has always been questionable, because a document does not magically become reliable enough to escape the rule against hearsay on the day it turns 20.”

Makes sense. But why the current attention to the ancient documents exception? Continue Reading

TAR Preferred, Keywords Acceptable – Focus on Defensible Process!

It’s hard not to feel a bit embarrassed for all the bloggers who await, and write about, nearly everything Magistrate Judge Andrew Peck (S.D.N.Y.) writes about the search for and production of electronically stored information (ESI). We’re far more guarded over here at Discovery Advocate, only commenting a few times (here, here, here, here, here and, um, here).

What do you need to know about Judge Peck’s recent decision in Hyles v. New York City? It builds on multiple themes that appear in his prior opinions. The main point in Hyles is that a requesting party cannot force a responding party to use technology assisted review (TAR) or, for that matter, any other particular method, to search for and produce ESI. This is not a surprise. Judge Peck previously made this point in Rio Tinto PLC v. Vale S.A., relying on some of the same precedent he now invokes in Hyles – the Tax Court’s recently revisited 2014 ruling in Dynamo Holding (“[T]he Court is not normally in the business of dictating to parties the process that they should use when responding to discovery”) and The Sedona Conference Principle 6 (“Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information”). Continue Reading

U.S. Tax Court Gives Strong Boost to Computer-Assisted Review

On July 13, 2016, in Dynamo Holdings Limited P’ship v. Comm’r, the U.S. Tax Court strongly defended the taxpayer’s use of computer-assisted review in a dispute with the IRS. In a 2014 decision in the same case, the Tax Court had already endorsed computer-assisted review, namely predictive coding, as a general matter. “Predictive coding is an expedited and efficient form of computer-assisted review that allows parties in litigation to avoid the time and costs associated with the traditional, manual review of large volumes of documents.” Dynamo Holdings, 143 T.C. 183 (2014).

After that 2014 decision, the taxpayer and the IRS jointly developed a process for applying predictive coding to a large set of data in discovery. The IRS was unsatisfied with the results of the process and in 2016 moved the court for an order to compel the taxpayer to use a traditional Boolean search. The Tax Court did not take the motion well. The court found that the IRS’s motion identified no deficiency with the methodology that the taxpayer used and instead attacked only the adequacy of the results of the search. The court held that the IRS “is seeking a perfect response to [its] discovery request, but our Rules do not require a perfect response.” Instead, the Tax Court rules require that the responding party make a “reasonable inquiry” before submitting the response. The court found that the IRS’s arguments were based on the “the myth of [the superiority of] human review” and “the myth of a perfect response.”

This decision is gratifying for its acknowledgment of the indisputable truths that (1) no review will catch every responsive document (complete recall) and exclude every nonresponsive document (complete precision), (2) computer-assisted review may be the best course when dealing with large volumes of data, and (3) systems must focus on the quality of processes, not results, if they are to be at all workable.

 

Karin Jenson Talks to Above the Law About Trends in E-Discovery

KjPartner Karin Scholz Jenson, national leader of BakerHostetler’s E-Discovery Advocacy and Management team was interviewed in an article published by Above the Law on March 1, 2016. The article focuses on trends in E-Discovery and on the upcoming 10th Annual Sedona Conference Institute Program on eDiscovery, for which Jenson is a co-chair.

Read the article.

 

Retooling Your Practice Under the New Rules with The Sedona Conference Institute: a Case Summary (Part 2)

TSC logoBy Karin Jenson, national leader, E-Discovery Advocacy and Management Team and Co-Chair of The 2016 Sedona Conference Institute And Jacqueline K. Matthews, BakerHostetler associate

Every year, The Sedona Conference Institute keeps us ahead of the e-discovery curve with panels such as the famous Case Law Update and Judicial Roundtable.  This year’s Institute will be devoted to the changes in the Federal Rules of Civil Procedure and will include panels on the new Rules 26, 34 and 37(e). The new Rules are already generating significant case law, and there will be even more by the time we meet in San Diego on March 17-18.  In the coming weeks, we will be posting brief summaries of some of these recent cases. For a more in-depth look at the new rules and how to retool your practice, register for The Sedona Conference Institute. Meanwhile, here’s a summary of Brown v. Dobler, No. 1:15-cv-00132, 2015 WL 9581414 (D. Idaho Dec. 29, 2015):

A district court in Idaho recently considered a pro se inmate’s motion to compel the production of documents by various defendants in Idaho’s corrections system. While pro se litigants inexperienced in litigation often run afoul of the Rules, this time the court found it was the represented defendants who had failed comply with their discovery obligations.

The court first established that, although the motion to compel had been filed prior the December 1, 2015 effective date of amended Federal Rules, it was the newly amended Rule 34 that governed the motion. The defendants had violated new Rule 34(b) by making boilerplate privilege and confidentiality objections without stating whether responsive materials were being withheld on the basis of those objections.

Further, although some of the plaintiff’s document requests were overly broad, the court specifically instructed the defendants to “use their judgment” to “respond to an overly broad request with information or documents that are relevant to Plaintiff’s claims.” The takeaway for responding parties is that, if any subset of documents responsive to a particular request is not subject to objection, a responding party should consider whether to produce the unobjectionable documents while working to narrow the request with the adversary.

 

Retooling Your Practice Under the New Rules with The Sedona Conference Institute: a Case Summary (Part 1)

TSC logoBy Karin Jenson, national leader, E-Discovery Advocacy and Management Team and Co-Chair of The 2016 Sedona Conference Institute And Jacqueline K. Matthews, BakerHostetler associate

Every year, The Sedona Conference Institute keeps us ahead of the e-discovery curve with panels such as the famous Case Law Update and Judicial Roundtable.  This year’s Institute will be devoted to the changes in the Federal Rules of Civil Procedure and will include panels on the new Rules 26, 34 and 37(e). The new Rules are already generating significant case law, and there will be even more by the time we meet in San Diego on March 17-18.  In the coming weeks, we will be posting brief summaries of some of these recent cases. For a more in-depth look at the new rules and how to retool your practice, register for The Sedona Conference Institute.  Meanwhile, here’s a summary of CAT3, LLC v. Black Lineage, Inc., No. 14CIV5511ATJCF, 2016 WL 154116 (S.D.N.Y. Jan. 12, 2016):

A main goal of the newly revised Federal Rule 37(e) is to provide a uniform standard for the imposition of sanctions when electronically stored information is lost because a party failed to take reasonable steps to ensure preservation.  While the Advisory Committee Notes state that the new Fed. R. Civ. P. 37(e) “forecloses reliance on inherent authority or state law to determine when certain measures should be used,” the Southern District of New York recently stated in dicta that even where the requirements of Rule 37(e) were not met, the court could nevertheless use its inherent authority to impose sanctions for the bad faith spoliation of evidence.

The facts of Cat3, involving intentional alteration of domain names of senders and recipients of key emails,  were sufficient for the court to conclude that sanctions were warranted both under Rule 37(e)(1) and 37(e)(2). But it remains to be seen whether, when confronted with a case that does not fit neatly into the Rule 37 framework, courts will invoke inherent authority.

Congratulations! Now what?

Litigation_shutterstock_126537545Twitter is abuzz with messages about today’s effective date for the changes to the Federal Rules of Civil Procedure that read more like birth announcements (“It’s finally here!”). But figuring out what to do once you get that baby home is another matter – despite having a long time to prepare. Moreover, while there is as much commentary about the rules changes as there are parenting books, it’s hard to really figure out what to do until you are doing it.

Having stared down our first Request for Production of Documents due after today, we offer the following tips for adjusting to the new rules, with the caveat that they may not apply in every case. If you have your own tips, post them in the comments or email us.

Timing

  • The changes affect pending cases “so long as just and practicable.” The judges involved in the changes have voiced an expectation that they be applied in pending cases.
  • Your best bet for complying with the amended rules is early case assessment. As soon as possible, figure out:
    • Who the key custodians are, and what their roles are.
    • Where the main documents reside.
    • What the challenging places are where discoverable information might reside, such as structured databases, applications, and proprietary platforms.
    • Whether there are sources of potentially relevant electronically stored information that are likely to be lost (e.g., automatic deletion of email) if steps are not taken to preserve them.
    • What factual issues are undisputed and not necessary for discovery.
    • What you need from the adversary in order to resolve the issues in dispute.
  • The deadline for service of a complaint has been shortened by 30 days, to 90 days after filing.
  • The deadline for using a scheduling order has been shortened by 30 days.

Continue Reading

Conclusion: Your First Five Questions (times four): A Practical Guide to the Amended Federal Rules of Civil Procedure – Are you Ready?

magnifyingglass_000001973994_First Five QuestionsThe current amended Federal Rules of Civil Procedure—and, in particular, those that address the practice of civil discovery—are the product of five years of development, debate, and, of course, dialogue. Now that the Rules are set to be implemented on December 1, 2015 – and they apply to pending cases where “just and practicable” — the focus among attorneys and their clients has changed from what the Rules should say to how they should work. While debates remain as to how certain parts of the Rules will wear-and-tear once put to the test in discovery, there are clear indications within the text of the Rules (with some help from the Committee Notes to the Rules and the contributions of judges and other writers) as to how the Rules will apply. Over the past few weeks as part of Discovery Advocate’s First Five Questions series, we have examined some of the initial and immediate considerations expressed within and surrounding the rules and applies them to practice, regarding the Rules’ application to Proportionality (Rule 26); Early Case Assessment (Rules 4, 16, 26, and 34); Preservation (Rule 37); and Objections (Rule 34). A version of these posts were published as “Twenty Questions: A Practical Guide to the Amended Federal Rules of Civil Procedure” for the 2015 Georgetown Advanced E-Discovery Institute.

Conclusion:

While this series’ 20 questions have not asked “animal, vegetable, or mineral,” and will not offer a lifetime supply of Pageant magazine, Ronson Lighters, or Wildroot Cream-oil,[1] readers have received something even better: practical advice that can be used in office or in court, to help friend and foe alike survive and even thrive in today’s discovery practice. Really, there is only one final question:

Are you ready?

[1] Wikipedia, Twenty Questions – Television (Sept. 28, 2015) https://en.wikipedia.org/wiki/Twenty_Questions.

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