It’s the End of Authentication (of ESI) as We Know It

Amendments to Federal Rules of Evidence 803 and 902 will become effective on Dec. 1 and will “govern in all proceedings thereafter commenced and, insofar as just, all proceedings then pending.”

We previously analyzed the changes to the hearsay exception for ancient documents (FRE 803(16)), and here focus on amendments concerning the self-authentication of evidence generated by electronic processes or systems (FRE 902(13)) and self-authentication of data copied from an electronic device, storage medium or file (902(14)). In short:

  • The intent of these amendments is to streamline authentication of electronic evidence through pretrial certification processes intended to minimize the need for testimony by a foundation witness.
  • A party seeking to take advantage of these procedures must ensure that its processes for preservation, collection, processing and production of electronically stored information (ESI), and for tracking the chain of custody of such information, enables the party to make the certification envisioned by the amendments (a certification that may post-date those actions by months or even years in complex litigation).
  • These amendments do not prevent the parties from stipulating to authenticity, even without a certification. Nevertheless, they may incentivize parties to more aggressively challenge authenticity where it is apparent that an opponent is unable to make the pretrial certification envisioned by the amendments.
  • These amendments focus on authenticity only, and a proponent of the evidence must still be prepared to overcome other hurdles to admissibility, including hearsay and relevance.

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Cost Shifting Ordered Due to Inadequate Meet and Confer

Discovery is not about gamesmanship, and parties are expected to engage in meaningful negotiation about the terms of discovery agreements. That is the message from Judge A. Kathleen Tomlinson of the Eastern District of New York, who recently ordered cost shifting when parties failed to meaningfully meet and confer about their electronically stored information (ESI) agreement. The decision is remarkable, because it orders cost shifting in a case where there is no claim that the discovery sought is unreasonable in scope or unnecessary to resolve the claims in the dispute. The court did not analyze and weigh the proportionality factors in Rule 26, which might have resulted in a more nuanced ruling. While serving as a valuable reminder of the importance of meet and confers in the discovery process, the decision sets a potentially dangerous precedent that parties who object to the expense of discovery that is completely reasonable in scope and necessary to resolve matters in dispute can still shift the cost of that discovery to their adversaries.

In Bailey v. Brookdale University Hospital, a single-plaintiff employment litigation, Mr. Bailey claimed he should not have to bear the burdensome cost of production despite a negotiated, executed, and ordered ESI agreement between the parties. Judge Tomlinson concluded that cost shifting was appropriate in this case, because the ESI agreement was not meaningfully negotiated, resulting in an agreement that was inappropriate for the litigation. Continue Reading

E-Discovery Standards and the 26(g) Signature That Drives the Market

We begin with three quick questions:

1. Which legal practice has created and fueled a multibillion-dollar support industry?

2. Which legal practice employs incomprehensible acronyms that require a glossary apart from Black’s Law Dictionary?

3. Which legal practice motivates debates between non-lawyer computer scientists and academics?

If you guessed e-discovery (perhaps because you’re reading an e-discovery post with an e-discovery title on an e-discovery blog), you’re right. And because of the spend associated with this practice, standards might be expected, assuming consensus and agreement within the e-discovery space.

But agreement is especially difficult in e-discovery because of this choice of standards direction: Should they be technology-based in an environment where technologies change rapidly? Or should standards focus on the process used by attorneys who must certify their discovery responses under Federal Rule of Civil Procedure 26(g), but who are less-than-embracing of advice from nonpractitioners, scholars and academics, and litigation support professionals? In the absence of consensus, standards have thus far languished, and there is currently no clear-cut direction in the market.

There is still merit in considering standards for e-discovery as a practice, despite the requirement for attorney sign-off, because e-discovery is a highly technical practice that is only becoming more so. The value of this consideration (and other topics) are addressed in Perspectives on Predictive Coding and Other Advanced Search Methods for the Legal Practitioner, where the authors contributing chapters confronted the challenge of modernity and the understanding that the present-day “legal profession lives and breathes in a world of electronically stored information.”

While we have examined technology assisted review (TAR) and defense of process in the context of specific cases before, in our Perspectives chapter, “A Modest Proposal for Preventing e-Discovery Standards from Being a Burden to Practitioners, Clients, the Courts, or Common Sense,” we took a holistic look at the possible standardization of present and future e-discovery practice in all cases. We also discussed whether technical standards would even be applicable, provided some additional guidance for practitioners within this space, and looked to the future of e-discovery and practice more generally. This discussion began with the present-day “patchwork of ‘best practices’ that has emerged from think tanks, regional judicial pilot projects, and individual judges,” leading us to consider whether standardization was even “possible in the context of procedural rules administered by courts relating to known and not-yet-knowable technological challenges.” In working through this question, we examined standard-setting bodies and their work product, parsing out the reasonable from the unreasonable, and offered a proposal of our own.

Again, standard-setting bodies are not without merit in the e-discovery space, and at the very least may provide a worthwhile checklist for those practitioners signing on the 26(g) line. In general, and as we discuss in the chapter, new e-discovery practitioners and veterans alike should be familiar with the following:

After our review and explanation of these and related resources, we offered a checklist set of 10 standard practices, bookended by two “new” considerations for long-time zealous advocates, cooperation and transparency. In particular, we asserted that cooperation was not simply “refraining from abusive practices, but also developing, testing, and agreeing on the nature and scope of information sought (to the extent consistent with clients’ interests).” We also noted that “true cooperation [might] require the use of true expert cooperation, where both parties have experts representing their interests.” For transparency, we considered recent case law that noted that practitioners should be prepared to provide full disclosure about the technology used, the process and the methodology, including those “documents used to ‘train’ the computer” in instances of TAR.

In sum, our proposed checklist focuses on the 26(g) practitioner, but incorporates principles more common to those branches of science and practice that rely on working in concert toward a common goal—in this case, the discovery practices required under the rest of the federal rules.

Attorneys’ Professional Duty of Care When Representing Clients in Litigation or an Investigation Requires Higher Technological Literacy

The legal practice and technology go hand in hand, and a solid understanding of technology is crucial to satisfy the ethical duties owed by attorneys to their clients. In an opinion published on Feb. 21, the New York County Lawyers Association Professional Ethics Committee (the “Committee”) stressed that the legal practice needs to keep up with technology and that the duty of competence is evolving as technology advances and integrates with the practice. Therefore, attorneys should possess a higher level of technological literacy in order to provide skillful representation and adequate service to their clients.

The notion by which an attorney is required to familiarize herself with clients’ IT systems and data retention practices isn’t new; it is embedded within the Federal Rules of Civil Procedure, various local rules and rules of professional conduct, and in numerous court decisions (such as the notable Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004)); however, the Committee’s decision takes it one step further to determine that the duty of competence does not stop there. Attorneys need to be versed in clients’ IT environments, but also adhere to a higher standard of competence and possess “sufficient understanding of issues relating to securing, transmitting, and producing electronically stored information” in order to protect clients’ confidential information from cybersecurity risk. Continue Reading

It Lurks in the Last Place You Look – Preventing (or at Least Mitigating) Employee Data Leakage

Data 483120645_smOutside hacking attacks grab headlines. Data breach concerns cause sleepless nights within the C-suite of many organizations. And ransomware strikes fear into companies without sound backup practices and true Information Governance programs. But a different (and sometimes more sinister) problem often goes undetected within the four walls of those same organizations’ firewalls and barriers to entry. It’s not radon. It’s the issue of data compromise or “leakage,” perpetrated by employees, to the tune of billions of dollars every year.

In Technological and Information Governance Approaches to Data Loss and Leakage Mitigation, a recent article published in Computer Science and Information Technology as part of the proceedings for the 12th International Conference on Cyber Warfare and Security (ICCWS 2017), the authors addressed this issue. In particular, the article examined the insider (and sometimes existential) threat employees pose when those employees simply access and utilize systems they need in order to do their jobs. Sadly, much like customer service jobs that would be perfect but for the customers, employees present a “conundrum where [those] employees are both the potential creators as well as the potential solution(s) to an insider threat.” That is, when an employee single-mindedly pursues a business task or objective, he or she may employ a data transfer mechanism that operates as a “bit player[], used only for a one-off data transfer or movement according to a fleeting purpose,” that also subverts the organization’s data protection strategy in ways not contemplated by IT professionals, who are geared up to fight a battle against foreign agents and outside threat vectors. Continue Reading

Advocacy in E-Discovery More Important Than Ever

Close up Magnifying Glass Leaning on Wooden TableIn this day and age, advocacy starts with competence in ESI issues. An effective advocate must be able to assess e-discovery needs and issues, implement appropriate preservation procedures, advise clients on options for storage and preservation, understand the client’s ESI systems and storage, and handle the management, review and production of ESI in litigation. But this knowledge by itself is not enough. Only with an understanding of how the amendments to the Federal Rules account for issues pertaining to ESI can the attorney meaningfully advocate for the client.

Relevance and Proportionality Defines the Scope of Discovery

One of the major changes to the rules is the deletion of the phrase “reasonably calculated to lead to the discovery of admissible evidence” in Rule 26. That language was previously used to describe the test for relevance, but it was often incorrectly applied to define the scope of discovery to the point where it swallows any limitation on the scope of discovery. The new test now emphasizes proportionality, and the relevant case law informing the scope of discovery going forward will increasingly be that which applies the new rules. See In re Bard IVC Filters Prod. Liab. Litig., 317 F.R.D. 562, 564 (D. Ariz. 2016) (“[J]ust as a statute could effectively overrule cases applying a former legal standard, the 2015 amendment effectively abrogated cases applying a prior version of Rule 26(b)(1)”).

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Judge Peck to Attorneys – Wake Up and Read Rule 34

Know The Rules Businessman Holding in Hand New technologiesIt has been more than a year since the update to the Federal Rules of Civil Procedure, and Judge Peck is losing patience with litigators who do not follow the “no-longer-new 2015 Amendments.” Recently, in Fischer v. Forrest, he took attorneys to task for not following the updates to Rule 34, and detailed three basic things responses to discovery requests must do.

First, responses must state grounds for objections with specificity: “General objections should rarely be used after Dec. 1, 2015, unless the objection applies to each document request (e.g., objecting to produce privileged material).” General objections on “the basis of non-relevance of the ‘subject matter of this litigation’” are unnecessary given the updated language of Rule 26(b)(1), which makes subject matter discovery impermissible. Furthermore, be aware of outdated language that exposes ignorance of the plain language of the new rules. For example, objecting to a request on the basis that is not “likely to lead to the discovery of relevant, admissible evidence” is also unnecessary given the updated language of Rule 26(b)(1), which removed “reasonably calculated” as a “definition for the scope of permissible discovery.” Finally, avoid boilerplate language. Nothing is “overbroad and burdensome” without reasons to support why it is overbroad and burdensome. Continue Reading

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