In Part One of this article, we took a broad look at what e-discovery really is, defined the key terminology, and examined some of the technology impacting this field. Now, in this final Part Two, we will explore the technology in more detail, address the defensibility of the technology, and conclude with how all of this affects you, as a practitioner.
The technology used for e-discovery is constantly changing and improving. Well, if it is evolving at such a rate, then why do you need to obtain some technology to assist you now? Because, like your phone and computer, it has become an unavoidable component of the practice of law. New phones come out all the time, but you don’t likely change yours every three months. Similarly, new advances improve the scope and speed of e-discovery tools all the time, however, you will not need to change your technology regularly, but merely to have some reliable and proven technology upon which to rely to assist you in this regard.
The technology or software to assist you in your e-discovery practice can be hosted on your computer or reside elsewhere, such as on the server of a vendor or in the cloud. Each of these options has their own security concerns for protecting client data. Naturally, the decision of which method to utilize is one that only you can make after exploring the options with vendors. Many vendors offer multiple versions of the same technology for those who wish to self-host or those who wish to have remote access to the data.
While technology exists to aid you in sorting data collected or provided from your client and third-parties, you must also be aware that technology exists to assist your clients in preserving, maintaining, and producing ESI. To complement the software, it is not too early to begin discussing a litigation hold policy with your clients and even developing internal training strategies for their employees and contractors to avoid the inadvertent loss of important ESI.
Whatever route you take and whatever technology you ultimately choose to assist you in handling and producing ESI, you will be faced with a decision of how much control to release to the computer/software “brain”. At present, this is a hot button topic in the federal courts and has been addressed in several recent federal opinions. Software that assists us in searching voluminous data that allows the software to make decisions as to relevance has been referred to as “computer assisted research”, “computer assisted coding”, and “predictive coding”. This is in contrast to technology that utilizes a different method of searching, such as keywords, whereby the software merely identities those pre-defined keywords in documents and leaves the ultimate decision on responsiveness to the practitioner. Obviously, the first method is arguably more sophisticated programming, but its process must be reliable in order to be defended to a Court later if the issue arises, which leads us to the issue of defensibility.
Although, at present, our Florida State Courts may be in somewhat uncharted waters, it is foreseeable from parallel developments in federal cases that the method by which ESI was processed may be called into question in a particular case. While one argument may be that the culling method is protected work product, it may also be appropriate for a Court to inquire into the method used in a particular case to determine, for example, whether the imposition of sanctions is appropriate or in balancing which party should bear the costs of production from the party or a third-party.
In selecting software to assist you in e-discovery or a third-party vendor to perform this task, you will want to inquire as to the methodology employed in the software and its track record to avoid a potentially costly situation later where you are called upon to defend the methodology used in production. That is not to imply that computer assisted review or predictive coding is somehow inappropriate or untested technology, but simply that you must be aware of the technology you are using no different than understanding the methodology of an expert you would employ.
SO HOW DOES ALL THIS AFFECT YOU?
This brings us to the all-important question of why should you care about any of this. E-discovery will become an integral component to civil discovery and with it the real potential for a wide range of sanctions.
In recent months there have been several highly visible cases in which Courts imposed sanctions based on e-discovery violations. Sanctions can range from the exclusion of evidence and adverse jury instructions to post-trial findings that impact a party’s appeal.
Sanctions can also be monetary and can run against a party or even, in some cases, directly against the attorney that aids in secreting a client’s electronic data. Similarly, the improper production of privileged materials in e-discovery may be considered legal malpractice. Thus, the lesson to be taken is that all attorneys now have a new obligation to counsel their clients on ESI and data management, therefore, the attorneys must understand this area of the law, as well.
This “brave new world” of e-discovery is here to stay and must be embraced and integrated into the practices of all Florida civil litigation attorneys. It is conceptually not that different from traditional discovery. Disregarding it, however, can be perilous and costly, while mastering its nuances can make you more efficient, cost effective, and provide a better service to your clients.