In some respects, 2013 seemed like a conversation between Vladimir and Estragon. Some commentators likened it to a simple, unified message that finally had E-Discovery practitioners, litigators in general, and affected clients speaking the same language; others feared that a continuation of the status quo meant simply that another year had passed without addressing the significant concerns associated with the over-preservation of data and the lack of judicial consistency.
Info Keeps on Growing
The truth, as was often the case, was somewhere in between. Certainly, more than “nothing” happened: by the end of 2013’s 525,600 minutes, 63 million additional people had joined LinkedIn (at a rate of two-per-second), 42% of whom regularly update their profiles; a comparatively paltry 25,228,800 hours of video was uploaded to YouTube; and an additional 3 billion web pages were created. And we cannot forget the users (and bots) who combined to send 52 trillion pieces of email. All of this contributed to an overall growth of enterprise-data by an astounding 40 to 60% over the course of 2013 (with an expected annual increase of 4,300% by 2020), which magnifies the importance of preservation and disposition decisions (or the lack thereof) – which is not to say no cases were decided in 2013, however.
There are Limits to your Search
The concerns about over-preservation and judicial consistency made some small strides in this rapidly increasing area of information storage, as courts continued to catch up with the practices followed several years ago. On one hand, absent a showing of relevance, courts will not always order discovery of social media in the context of “fishing expedition[s],” may decline to compel responses to “ultra-broad” requests and may uphold reasonable, proportional limits to the scope of discovery. In fact, a court might decline to sanction the routine deletion of text messages.On the other, the deletion of a Facebook account earned an adverse inference instruction, and auto-delete sanctions will continue into the foreseeable future. As far as case law trends in general go, e-discovery opinions were fairly evenly distributed across categories dealing with costs, preservation & spoliation, procedural issues, production, and sanctions.
The Amendment Process
Those practitioners concerned about consistency have been actively pushing for legislative assistance to help clarify the courts’ sometimes one-off decisions in the face of difficult facts; however, despite contributing 386 comments by year’s end, their wait did not end in 2013. Not only was 2013 spent waiting (just like the last three years) for proposed rule amendments to Federal Rules of Civil Procedure 26 regarding discovery costs and Rule 37(e) on spoliation and sanctions; but scheduled public hearings will continue until at least February 2014. At least one practitioner has suggested that the process is on Step 2 of 7, which may be a recurring theme. But not everyone is taking the wait as a signal of the way jurisprudence is evolving, and significant concerns have already come out of the judiciary. Judge Scheindlin publicized her concerns regarding Federal Rule of Civil Procedure 37(e) in her reversal of a Magistrate Judge, intimating that the lack of a rebuttable presumption (as potentially proposed in the rule) would put the onus on the party allegedly harmed to prove the intent of the wrongdoer in her opinion in Sekisui Am. Co. v. Hart.
You Must Cooperate, but Perhaps even an Open Kimono Approach Must Not Reveal Everything
Finally, in a closely followed case among the first dealing with predictive coding, a court finally provided some guidance on an area that had vexed practitioners since predictive coding (or technologically or computer-assisted review) began to gain traction. At a very basic level, some predictive coding engines rely on a training set of information to generate the parameters by which the system will evaluate the much bigger set of reviewable information. This training or “seed” set is comprised of examples of relevant documents, as well as irrelevant documents, used to train the technology as to what is relevant and what is not. Practitioners had worried that opposing parties would ask for the totality of the training set documents, and those fears were not unfounded. In Biomet, plaintiffs’ steering committee wanted exactly that: the “whole” of the training set in order to evaluate the process. The judge declined to order production, but “split the baby” somewhat in his reasoning, stating that while he would not order the party using the training set to turn over non-responsive documents included in that set, he encouraged the party to “re-think its refusal” and do so anyway under the aegis of the Sedona Conference’s endorsement of cooperation. We expect that 2013 is a harbinger of a more robust judicial debate about the transparency needed for the use of machine learning tools and—possibly given the recognition of imperfection in traditional human review—the transparency required for search of any type.
New Expertise in the Face of Change
This past year also brought tremendous contributions by E-Discovery’s thought leaders. The Sedona Conference published new or revised Commentaries on Proportionality, Ethics & Metadata, and Information Governance, with Commentaries on Search and Achieving Quality expected shortly. Georgetown’s Advanced E-Discovery Institute applied lessons of the last decade to the e-discovery and information governance challenges of the next. And the Fifth DESI workshop on Standards for Using Predictive Coding, Machine Learning, and Other Advanced Search and Review Methods in e-discovery brought eE-discovery stakeholders and practitioners from the law, government, and industry, along with researchers on process quality, information retrieval, human language technology, human-computer interaction, artificial intelligence, and other fields together to focus on the future of search and review.
In 2013, where the legislature has not (yet) spoken but rule changes loom, courts attempted to find some middle ground in the face of party pressures and shifting individual behaviors. All of this took place with a backdrop of incredible information growth which will continue in 2014, with additional scholarship devoted to proper e-discovery and information governance practices designed to help. The use of predictive coding will necessarily continue as parties are forced to deal with this deluge of data; thankfully, jurisprudence and practitioners are continuing to provide strategic direction, as well.