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By Casey Sullivan
2018 has been an unusually quiet year for eDiscovery cases. Usually by this point, we would have at least a few blockbuster cases, with big sanctions and big controversy to make a big deal over. While we have had a few big fines, the jurisprudence in eDiscovery seems to have settled down greatly since the enactment of the 2015 amendments to the discovery rules in the Federal Rules of Civil Procedure.
But that doesn’t mean the legal questions around eDiscovery are solved, as this year’s most important cases show us. Courts and litigants are still struggling with issues such as:
- how best to deal with parties that refuse to adapt their discovery strategies to modern times;
- the proper scale of discovery sanctions;
- how to treat social media evidence; and
- what forms of oversight and disclosure are appropriate for potentially “black box” review technologies.
To provide some guidance to these issues—and to save you from having to read through six months of eDiscovery case law on your own—Logikcull is hosting a webinar surveying the top cases of 2018 so far. You can watch it live today or on-demand at any point after. Featuring the Honorable James C. Francis IV, recently retired after 30 influential years on the SDNY bench; Gareth Evans, litigation partner at Gibson, Dunn and Crutcher and the lead author behind the firm’s widely read eDiscovery Year-End Reports; and Michael Simon, principal at Seventh Samurai and consummate webinar host, the event surveys the five most significant cases of the first six months of the year.
The Biggest Opinions of 2018
One of the main takeaways from these cases—and the fact that there are not more like them— is the continued impact of the 2015 amendments to the Federal Rules of Civil Procedure, the impact of which has been overall positive, in some ways surprisingly so. The promotion of the concept of proportionality to a primary position in FRCP 26(b)(1), which despite being oversold by many as the “creation” of a “new” rule of proportionality (it instead was just buried much deeper in the depths of FRCP 26 prior to the amendments), has been taken up by many judges and now appears to be a useful way of reducing eDiscovery demands and costs.
Likewise, the new FRCP 37(e), which bars severe sanctions for merely negligent eDiscovery conduct and instead focuses on “intent to deprive,” has replaced to good effect the worthless safe harbor provision pre-2015 version of the Rule (for which our extensive prior research found a total of zero published cases in which a respondent was able to successfully use it to avoid sanctions). We initially saw in 2016 and 2017 a number of cases that seemed to erode the new FRCP 37(e) distinction between the severe penalties imposable under (e)(2) for “intent to deprive” versus the lesser, curative remedies available under (e)(1) where such intent could not be shown. However, this trend of judges imputing intent without any actual evidence of actual intent may have abated, and we now see far more cases like Schmalz v. Village of North Riverside, 13 C 8012 (N.D. Ill. Mar. 23, 2018), where the court carefully examined whether there was intent, did not find any evidence thereof, and thus appropriately applied (e)(1).
So which cases are worthy of attention this year? First, we still do see some whopper sanctions cases in eDiscovery disputes. It is hard to ignore the imposition of $2.7 million in sanctions in a case with only $20,000 in potential damages that is subsequently approved by one of the most influential federal appellate courts, as was the case in Klipsch Group, Inc. v. ePRO E-Commerce Ltd., 16-3637-cv (2d Cir. 2018).
Another area worthy of further scrutiny is the protracted, grudging battle by so many members of the bar to avoid giving up their boilerplate discovery responses. Despite the amendments to FRCP 34(b)(2)(B) and (C) that require responses and objections to be made with specificity, it seems from cases like Wesley Corp. v. Zoom TV Products, LLC, 2:17-cv-10021 (E.D. Mich. Jan. 11, 2018), that lawyers will only surrender their vague and vexing boilerplate when judges pry it out of their cold, dead hands.
Social media continues to raise issues as well. For many lawyers, particularly in personal injury matters, social media has become the Golden Goose of evidence to prove that the plaintiff’s alleged injuries are exaggerated or faked. Because personal injury cases are typically heard in state court, social media issues have often been decided in such venues; after all, while an individual personal injury plaintiff can be brought down by a “gotcha” picture of them waterskiing on their Facebook feed, a giant, multinational conglomerate in an antitrust dispute cannot—though we’d still love to see that pic!
Previously, the best general advice that could be given, if any such generalities could apply across 50 states, is that public social media postings were fair game for discovery whereas private postings were not—so tell your clients to just post those waterskiing selfies to their several hundred closest friends. Yet even this generality has become far less general lately, as New York’s highest court, in Forman v. Henkin, 2018 NY Slip Op 01015, 30 NY3d 656 (N.Y. Feb. 13, 2018), overturned a lower court opinion and allowed full discovery of private Facebook postings.
And, finally, what would a case law update be without some sort of reference to predictive coding, technology-assisted review, computer-assisted review, or whatever we are calling it these days? Ever since Da Silva Moore v. Publicis Groupe & MSL Group, 11 Civ. 1279, (S.D.N.Y. Feb. 24, 2012), we have been told on a regular basis that some new case has finally given lawyers the judicial green light that they need to actually use PC/TAR/PC-TAR/CAR/etc.
Perhaps the fact that we still cannot even agree on simply what to call it is an indication of the complexity of the problem, but here we are six years after Da Silva Moore still disputing some of the most fundamental facts of what is, fundamentally, merely the application of machine learning to eDiscovery.
In that light (green or some other color), TAR has been at the center of two significant cases for 2018 so far. In Re Broiler Chicken Antitrust Litigation, 1:16-cv-08637 (N.D. Ill. Jan. 3, 2018) has been hailed as the ne plus ultra of TAR protocols, with eight pages of exacting detail that appear, at least to some, as the ultimate means to avoid further TAR disputes. Yet, to others, the very precision of the In Re Broiler Chicken protocol is the precise reason that it will be the sine qua non cause of endless discovery disputes. The one thing that we can know at this time is that the case certainly has been the cause of endless and endlessly awful chicken-related puns, a temptation which we will, perhaps surprisingly, ourselves resist (if only because that it’s just too… easy).
One more dispute within the world of TAR worth watching is the dispute over transparency: if you are going to use robots to “review” documents without actually having a human being put eyes on them, do you need to disclose this to the other side beforehand? It’s a debate that still rages with staunch proponents on either side — the human sides (the robots don’t seem to care) — which came to light most recently, with a side of dry, English wit in Triumph Controls UK Ltd & Anor v Primus International Holding Co & Ors  EWHC 176 (TCC) (07 February 2018).
The Biggest Lessons of 2018
So what are the biggest lessons to be learned from the state of eDiscovery case law in 2018 so far?
The first should be that sanctions, while very much a lessened threat from the prior everything-goes years (or is that “everything is sanctioned”?) of the past, is still a real threat, and even a major threat if lawyers and their clients push their credibility—and judicial patience—past the breaking point.
As well, while many lawyers have gotten on board with the changes that eDiscovery has brought to the practice of law, such as the need for proportionality and cooperation in discovery, some simply aren’t yet ready to give up on past bad practices like boilerplate discovery objections. It’s likely, from the growing level of judicial activity and rancor over boilerplate objections, that that change may be forced soon.
For social media issues, we need to remember that social media hasn’t even existed all that long as a thing to be discovered and that the law is still catching up. This is going to take some time, if only because these questions will necessarily involve 50 state jurisdictions, with varying rules and ethical rulings, instead of just one set of federal rules. New York is a sizable, influential jurisdiction and one that has been at or near the forefront of many social media issues, so Forman v. Henkin may well prove influential, at least on privacy rulings.
Finally, speaking of things that the law has not yet caught up with, when it comes to TAR, we are also still in for much change and maybe many surprises. One of the most contentious debates over TAR remains whether its use must be disclosed to the other side and how to treat that process once disclosure is made. This may well ultimately make or break TAR as a useful tool in litigation—if the cost and complexity, as demonstrated in In re Broiler Chicken, don’t break it first. In re Broiler Chicken Antitrust Litigation shows one way, which may be the way for such complex cases, and perhaps could trickle down to smaller cases. Certainly, Triumph provides a good example of what can happen when lawyers combine a lack of disclosure with a series of unforced, credibility-sapping errors. But so far, it seems, neither side of the TAR debate seems to have made a winning argument.
These debates will continue to play out for the months and years ahead. And while the first half of 2018 may not have been as ground breaking for eDiscovery as years past, that doesn’t mean there will be nothing more to talk about as the year goes by. Stay tuned.