In our last blog, we contemplated the many intersections between the top pop songs and eDiscovery developments in 2015. Today, we continue our review with more of the most popular records and legal events of the year.
#10 “Tryna keep it up, don’t seem so simple.”
“The Hills” by The Weeknd
Technological competence is becoming an important issue in eDiscovery, with at least 17 states adopting the ethical duty of technological competence to date. In June 2015, the California State Bar issued Formal Opinion No. 2015-193, regarding attorney competence in technology and eDiscovery. The opinion emphasized that lawyers who lack expertise in eDiscovery must take one of three avenues: (1) obtain the required learning and skill to perform eDiscovery, (2) associate or consult with competent counsel or technical consultants, or (3) decline the representation.
#9 “Earned It” by The Weeknd
“You’re always worth it, and you deserve it.”
“[D]ilatory, dishonest and intransigent” discovery conduct: it’s the recipe for sanctions, as plaintiffs in one case before the D.C. Circuit learned this year. Failing to produce, withholding, and denying the existence of documents aroused the ire of the court and forced the defendant to “waste resources and time.” Combine these transgressions with the plaintiffs’ misrepresentations about documents in their control and their violation of court orders requiring the production of their office server, and they were deserving of extensive sanctions for their abuses of the discovery process.
#7 “Blank Space” by Taylor Swift
“But you’ll come back each time you leave ‘cause, darling, I’m a nightmare dressed like a daydream.”
With regular data breaches and the emphasis on cybersecurity from the federal government, it is surprising how many organizations have yet to establish cybersecurity policies. Simple steps, such as conducting a risk assessment, inventorying digital assets, and creating an incident response plan can prove invaluable in the event of a network breach. Organizations using cloud-based eDiscovery technology hosted by a third-party provider should look for ISO 27001 certification and comprehensive security measures that include data encryption, third-party audits and documented chain-of-access, intrusion detection and monitoring services, redundant backup and extensive disaster recovery capabilities.
#6 “Shut Up and Dance With Me” by Walk the Moon
“Oh don’t you dare look back. Just keep your eyes on me. I said, ‘You’re holding back.’ She said, ‘Shut up and dance with me!’”
Parties are continuing to realize that predictive coding, also known as technology-assisted review (TAR), is their best friend when it comes to expediting document review and lowering overall discovery costs. This year, U.S. Magistrate Judge Andrew J. Peck acknowledged in Rio Tinto PLC v. Vale S.A. the growing acceptance of TAR, remarking that no longer is it a merely “acceptable way to search for relevant” electronically stored information (ESI): now its use is part of “black letter law.” Another court recognized that TAR “is not promoted (and gaining acceptance) as not only a more efficient and cost effective method of ESI review, but a more accurate one.”
#5 “Sugar” by Maroon 5
“You got me begging, begging, I’m on my knees.”
Given the volume of ESI in play, the risk of inadvertently producing privileged material continues to escalate. Amended Federal Rule of Civil Procedure 16 encourages courts to consider implementing clawback agreements under Federal Rule of Evidence 502. Rather than face the need to beg the opposition to ignore the unintentional production of privileged documents, organizations should include a clawback in their proposed scheduling orders.
#4 “Trap Queen” by Fetty Wap
“I just might snatch a ‘Rari and buy my boo a Lamb’. I just might snatch her a necklace, drop a couple on a ring . . . It’s big Zoo Wap from the bando, without dinero can’t go.”
As Wap says, an unfortunate number of organizations have “put [their] money where [their] mouth is” and engaged in bribery, particularly in Asia. In fact, in 2013 and 2014, Asia had twice the antibribery and anticorruption investigations by the U.S. government than of any other region around the world. Emerging markets are a primary target for the SEC and DOJ, and as these nations access U.S. capital markets and investments, Foreign Corrupt Practices Act enforcement is likely to increase.
#3 “See You Again” by Wiz Khalifa
“We’ve come a long way from where we began.”
With the amendments to the Federal Rules of Civil Procedure effective as of December 1, we have come a long way from when eDiscovery was first added to the rules in 2006. Time will tell whether these rules will have a meaningful impact on proportionality, cooperation, and consistency in sanctions. Hopefully, as Khalifa sings, parties will begin to “look at things different [and] see the bigger picture” as a result of this year’s changes.
#2 “Thinking Out Loud” by Ed Sheeran
“I’ll just keep on making the same mistakes hoping that you’ll understand.”
With the volume of information typically involved in eDiscovery, it is almost inevitable that mistakes will occur in document review. As one court acknowledged, “human error is common when attorneys are tasked with personally reviewing voluminous electronically stored information. The fact that defense counsel may have made mistakes does not warrant imposing sanctions . . . . ‘The discovery standard is, after all, reasonableness, not perfection.’” So long as there is no evidence of bad faith and parties cooperate in discovery, judges are unlikely to issue sanctions.
#1 “Uptown Funk!” by Mark Ronson
“If you sexy then flaunt it. If you freaky then own it. Don’t brag about it, come show me.”
With mergers and acquisitions, the best way to avoid a Hart Scott Rodino Second Request for information is to show, not tell. After nearly a decade of silence, the Bureau of Competition of the U.S. Federal Trade Commission (FTC) updated its guidance for parties involved in merger investigations in 2015, suggesting that the best approach to handling investigations is to supply information to investigators early. The Bureau encouraged organizations to take an open, cooperative approach, particularly when attempting to limit the scope and burden of discovery, and make it easier for investigators by providing lists of custodians and search terms, sending suggested language for modifying Second Requests, and providing a quick overview of documents to eliminate the need for a full production on issues.
As we look forward to another roller-coaster year with unexpected twists and turns, we hope the following line from Justin Bieber’s song “What Do You Mean?” does not encapsulate 2016: “Trying to compromise but I can’t win.” For more predictions about the coming year, stay tuned for our next post.