It is critical for litigators and eDiscovery consultants to monitor developments in case law, especially as they relate to emerging technologies and changes in legal practice. As the first half of 2023 comes to an end, it’s an ideal time to consider hot-button issues. This knowledge helps litigators anticipate what to expect in court, guide technology and provider partnership needs, and move cases forward efficiently.
Here are two growing discovery trends.
#1: There is a growing demand for carefully crafted ESI protocols.
More and more litigators are creating protocols to guide e-discovery in litigation. Not surprisingly, this topic has gained momentum in the courts in recent years. Because the parties agree on the content of the protocol, most judges will allow that instruction to be followed and determine the outcome of the discovery dispute.
Case law in this area addresses a variety of issues, but the underlying theme is that litigators need to think carefully about what they are agreeing to before creating an ESI protocol. By considering potential issues and bringing disputes to court early on, parties can have a clearer process and avoid extra costs and delays. Additionally, limiting the content of protocols to account for unknowns and leaving room for modification has emerged as an industry best practice.
Here are two examples from 2023 that illustrate and expand on this theme.
- in SinglePoint Direct Solar LLC v. Solar Integrated Roofing Corp., No. CV-21-01076-PHX-JAT (Arizona Democratic Party, March 21, 2023), the plaintiffs objected to several search terms submitted by the defendants, and the It was argued that this part was unnecessary. Both parties had agreed to the ESI protocol in advance without seeking court review. The protocol did not set a time limit for objecting.
Although the judge sided with the defendant on the proportionality argument, he made a point of labeling the protocol as poorly drafted and disagreed with the defendant’s argument that the objection was untimely. . He said that if protocols are submitted for approval, the court will consider those protocols unmanageable and add deadlines for objections or make other necessary changes before the parties can proceed. claimed that it was possible. This means that judges use protocols to guide their decisions, want their decisions to be more specific, and see an advantage in having the court review their decisions before making a final decision. is shown.
- McCormick & Co. v. Ryder Integrated Logistics, Inc., No. JKB-22-0115 (D.MD. March 8, 2023) is another example of a court strictly following the ESI protocol language. The administrator in this case has ceased employment with the plaintiff company and all data has been deleted. Plaintiff needed to obtain information from six of her other sources to capture relevant communications, and needed to search for the administrator’s name within her already collected ESI. This significantly increased the amount of potentially relevant documents, and the plaintiff argued that it was disproportionate to be forced to review these search results before producing them.
The ESI Protocol has a section entitled “No Presumption of Responsiveness” which states that in order to meet discovery obligations parties must review potentially relevant documents in accordance with the methods outlined in the Protocol. Ta. Additionally, it states that even if a document is retrieved in a search that follows the protocol, it does not necessarily mean that it is responsive, and that some data is appropriate to exclude from production environments. . Plaintiffs argued that this protocol did not require manual review of documents prior to production after identifying potentially relevant documents through search terms. The court disagreed, concluding that the plaintiffs did not see the entire protocol because plain language requires manual review of documents retrieved by search terms prior to production. The judge also found that the cost and time burden was proportionate. This decision is important because if the Protocol had been more limited, the court might have found that technology-enabled review was sufficient.
Although ESI protocols are not new, these cases illustrate how important they have become in litigation. Judges accept that protocols guide them in most disputes and are increasingly considering how and when to draft them to avoid extra costs and delays. Some analysts say that future protocols may require data security and privacy obligations, so litigators should monitor new case law to see if such obligations arise. We predict that there will be.
#2) Judges still rely on inherent authority to justify sanctions.
Federal Rule of Civil Procedure 37(e) provides grounds for a judge to impose sanctions if a party fails to preserve or destroy evidence. It has been nearly a decade since amendments to Rule 37(e) went into effect intended to streamline sanctions and provide elements that promote consistency. Although these amendments were intended to eliminate reliance on inherent authority, judges still utilize it to justify sanctions.
The question remains – should judges be allowed to rely on inherent authority? Legal analysts and case law suggest the answer to this question is “yes,” and there have already been decisions regarding inherent powers this year. Although Rule 37(e) applies in many situations, judges still rely on their inherent authority to impose sanctions where anomalies exist to achieve justice. Judges have continued to use inherent authority as an alternative to the authority granted by the Federal Rules or in conjunction with elements of Rule 37(e). This is a highly subjective area of the law, as sanctions depend on the facts of the case and require an analysis of the intent behind the act.
For example, in the patent infringement case of Site 2020 Inc. v. Superior Traffic Servs., LLC, No. CV 21-63-M-DLC-KLD (D. Mont., March 27, 2023), the court issued a harsh ruling. I announced. Sanctions for Plaintiff’s Discovery Misconduct. Both parties were competitors in the traffic light industry. Plaintiff had someone attend a business demonstration between Defendant and a third party while posing as an employee of the third party. This person secretly recorded meetings where attendees discussed sensitive information.
The judge noted that in addition to the ability of courts to impose sanctions for malicious conduct, courts also have the inherent ability to impose sanctions that terminate a case if the conduct is intentional, deceptive, and interferes with judicial integrity. He also declared that he had authority. Therefore, the judge granted the defendant’s motion for dismissal, finding that this ongoing action circumvented federal rules governing discovery and deprived the defendant of his right to represent himself. However, the judge rejected the request for a default judgment on the counterclaim, saying it was too harsh given the facts.
This decision reflects a clear consensus on the status of inherent privileges: still available but limited. Judges will typically rely on their inherent powers based on their discretion when the conduct is particularly egregious. Surveilling a party to obtain information before discovery is a very strict act, but other instances where a judge looks at their original authority include when a party withholds or loses evidence, or An example of this is when you hide something.
conclusion
The above represents a snapshot of two important discovery issues continuing in court. ESI protocols have become increasingly important in managing discovery disputes, and judges continue to rely on their inherent powers to ensure that all sanctionable discovery actions are addressed. As remote work continues, the use of technology evolves, and regulatory obligations increase, we will see more incidents in these areas and entirely new trends will develop. Analyzing trends provides insight into the best technology and provider partnership investments. Working with a knowledgeable provider with experience creating ESI protocols, accessing new technology, and developing strategies to maintain discovery compliance will facilitate streamlined litigation outcomes.
[View source.]
