The adage that law turns slowly does not hold in eDiscovery. This year saw unprecedented sanction awards for falling behind the curve. Courts did not hesitate to engage with advanced and nuanced technological issues. For lawyers and other eDiscovery professionals who plan on maintaining basic competence, these cases and trends shouldn’t be overlooked.
Exhibit A: Your Browsing History
Cases: Olney v. Jobs & Painter v. Atwood This year, we blogged about several cases that involved everyday Internet activity brought under judicial scrutiny. In Painter v. Atwood, the plaintiff was sanctioned for deleting Facebook posts. Olney v. Jobs featured another plaintiff who was sanctioned, in this instance for deleting his web browsing history. Seemingly innocuous, routine Internet activities are increasingly forming the basis for judicial sanctions when the duty to preserve triggers. Because many don’t consider the evidentiary impact of materials they post online, they might not even be aware of the potential obligation to preserve them. The Internet of Things will only exasperate this issue as more and more devices record activity.
Predictive Coding Crosses the Chasm
Case: Dynamo Holdings v. Comm’r Take a look at these statistics on predictive coding. In 2012, there were only five published orders or opinions discussing predictive coding. Moreover, the issues presented were basic, focusing mostly on general defensibility. The next year saw modest growth with eight opinions issued (with multiple opinions on the topic discussed in In Re Biomet). That number doubled to 17 opinions in 2014. 100% of those opinions endorsed and approved predictive coding in principle. Total Predictive Coding Related Opinions & Orders
- 2012: 5
- 2013: 8
- 2014: 17
Dynamo Holdings really drove that point home. There, the IRS Commissioner objected to the use of predictive coding, arguing that the technology was “unproven” (despite the foregoing statistics and other compelling evidence to the contrary). The court rejected that argument and approved the use of predictive coding, holding that “[p]redictive 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.”
Discovery Protocols Are No Mere Formality
Cases: Bridgestone v. IBM & Progressive v. Delaney Bridgestone and Progressive featured courts that were forced to interpret similar protocols after discovery had gotten underway. The parties had respectively agreed to similar discovery protocols at the outset of litigation that called for keyword searches followed by attorney review. In each instance, the plaintiffs subsequently realized that the amount of documents culled through keyword searches for manual review was cost-prohibitive and tried to implement a predictive coding process to meet their obligations.
The results were anything but similar. The court in Bridgestone allowed the plaintiff to “switch horses in midstream” and use predictive coding, holding that proportionality principles should guide the analysis. On the other hand, the Progressive court refused to allow deviation from the protocol, pointing to flaws in the proposed predictive coding workflow and historical production failures. While Bridgestone and Progressive reached conflicting results, their holdings are instructive on multiple levels. On the one hand, Progressive demonstrates that parties could be foreclosed from using efficient and cost-effective search methodologies if they agree to limit themselves in a case management order.
However, as Bridgestone observes, notions of proportionality and reasonableness may require a different result, particularly since discovery should “be as efficient and cost-effective as possible.” If confronted with the need to change discovery protocols, litigants should ensure that their proposed alternative course will result in document productions that are reasonable and proportional under the circumstances.
Cloudy with a Chance of Sanctions
Case: Brown v. Tellermate Holdings Cloud technology raised thorny eDiscovery challenges for enterprises in 2014. Principal among those challenges – featured in the Brown case – is the need to preserve relevant ESI stored with cloud computing providers. In Brown, the court imposed an issue preclusion sanction on the defendant for failing to preserve relevant information maintained on Salesforce.com.
While the defendant’s counsel issued a “general directive” that such relevant information be kept for litigation, neither the defendant nor its lawyers took meaningful follow-up steps to ensure that the cloud-stored data was preserved. Brown teaches that attorneys need to understand how to handle eDiscovery in the cloud and otherwise maintain technical competence in the digital age. This includes conducting an investigation to identify relevant ESI, instituting a legal hold as soon as reasonably possible, backing up the relevant data, conferring with service providers, and communicating with opposing counsel and the court.
The End of Ad Hoc BYOD
Cases: Small v. UMC & Cochran v. Schwan’s Home Service We’ve known for a long time coming that “bring your own device” (BYOD) policies would be ripe for eDiscovery troubles given the issues of control, scope, and arbitrary administration and enforcement. If there was any doubt, Small v. UMC hammered that point home by recommending an unprecedented default judgment sanction for the defendant’s failure to preserve a variety of ESI. In particular, the special master focused on deleted data previously stored on mobile phones used under a company BYOD policy.
Indeed, the defendant apparently lost or deleted over 25,000 text messages, many of which appeared to be relevant to the plaintiff’s class action claims. As if the BYOD ecosystem wasn’t complicated enough, the California Court of Appeals recently held that employers must reimburse employees for work-related use of personal mobile devices. These rulings that tend to punish laissez-faire BYOD practices will likely force companies to institute more hands-on policies regarding the work-place use of personal devices.
While painful in the short term, this trend should ultimately be good for organizations. Understanding and securing mobile device data should lead to better results in eDiscovery and may also help enterprises address the proliferation of hacks and breaches associated with mobile device use.