July 20, 2018
Many litigators have had the overwhelming experience of being dropped into a case that has been working its way through the court system for some time. Now that electronic discovery (e-discovery) has grown up out of its infancy, and some litigators have been focusing on e-discovery for their entire careers, it can feel overwhelming for newcomers to dive right into the complex issues surrounding preservation, collection, review, and production.
The Georgetown E-Discovery Training Academy (GDTA) provides a hands-on style conference that walks both newcomers to the profession and seasoned veterans through the myriad of discovery decisions that must be made, and potentially negotiated, throughout the life the case. The conference was comprised of a variety of industry specialists from both the plaintiff and defense bar, government entities, in-house legal departments, and discovery vendors. With the cross-section of lawyers, paralegals, and technologists, the discussion surrounding each discovery issue raised at GDTA was lively and well-informed.
Preservation and Collection
The first few days of the conference were devoted to preservation and collection of client data. Hot topics included collection from mobile devices, particularly smart phones, which increasingly contain more and more information that may be relevant to a case, particularly for an individual litigant. For example, geographic location contained in picture metadata could provide an alibi in a criminal case.
The conference leaders stressed the importance of preserving mobile phones at the outset of a case, even if only through the use of iTunes backups for iPhones. While there can be no doubt that phones are a part of everyday life, conference participants did not all agree that phone data should be preserved and collected for every case, citing both relevance and burden arguments and strong privacy concerns. These are issues that must be weighed by counsel in determining whether mobile data should be preserved, and if so, the parameters of that preservation. If a decision is made to preserve mobile device data, is the preservation of text messages enough? What about pictures? Most of the class had seen text messages collected and/or produced in a case, but other forms of data were less prevalent. Social media and other forms of communication were briefly discussed as well, including recent case law developments regarding preservation and authentication at trial of Facebook, Twitter, and other messaging applications.
Review with TAR & CAL
Technology Assisted Review (“TAR”) and Continuous Active Learning (“CAL”) also made up a large portion of the class discourse. While most class participants believed that the utilization of TAR and CAL technologies are appropriate in certain cases, the class was divided on whether or not TAR and CAL technologies were appropriate for all, or even most, cases. Discussion of the use of these technologies to identify potential documents for privilege or key documents in a case followed, though there was no clear consensus that these technologies were ideal for privilege and key document review.
Class discussion culminated in a mock meet-and-confer exercise in front of federal court judges, where a good portion of the meet-and-confers focused on production format. The class was heavily divided on the production of all documents in native format versus the traditional tiff image format that is commonplace in large-scale litigation.
Proponents for native production argued the importance of metadata on the native file, utilization necessity (for example, seeing the formulas within an excel or track changes), and the lower hosting costs associated with native format. The more traditional production proponents argued that tiff images provided better document security with Bates numbers and confidentiality order branding, ease of use in motions, depositions, and trial, and that relevant metadata can be provided with load files.
Ultimately, the consensus of the class was that each form of data should be evaluated to determine what production format made the most sense. For example, the parties may agree that spreadsheets be produced natively with a slip-sheet that provides the Bates number and confidentiality branding, but allows the parties to analyze the formulas and data contained within the spreadsheet in a way that could be more user-friendly than a tiffed image of a spreadsheet. This type of compromise and cooperation received high praise from the judges at the mock meet and confer.
Wendy Degerman is an associate with Nelson Mullins and practices solely with Nelson Mullins Encompass, assisting Fortune 50 clients with electronic discovery needs ranging from internal investigations to large-scale, high-profile litigation. She is based in the Columbia office.
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