We were honored once again to sponsor the Georgetown Law Center 8th Annual Advanced eDiscovery Institute which took place November 17-18 in Pentagon City, VA. This conference is an annual highlight because of the outstanding quality of the panels, which include many of the country’s most influential jurists. We were also pleased to have contributed to the discussions through a compilation of essays co-edited by Brad Harris and Ron Hedges on the topic of “Preservation and Proportionality.”
The conference had a wide-ranging agenda, so we’ve narrowed our focus to highlights pertinent to legal holds and data preservation issues, and selected three key takeaways from the conference.
1. Act Reasonably and Cooperate! Cooperate! Cooperate!
Arguably, the main event at the conference is the “eDiscovery Case Law Update” that was moderated by Ron Hedges and featured an all-star panel of judges. The recurring theme from the stage was an admonishment to act reasonably and cooperate with the court on preservation issues.
As Hon. John M. Facciola reflected, “Thanks to the work of Judge Rosenthal, Judge Scheindlin and the other members of the Federal Rules Advisory Committee, I don’t think they appreciate just how much cooperation is now coming into the system…a steady, irreversible trend towards cooperation and it is the next phase of discovery.”
Continuing to focus on the positive, Hon. Shira A. Scheindlin followed up on Hon. Lee H. Rosenthal’s presentation about Gaalla v. Citizens Med.Ctr., 2011 WL 2115670 (S.D. Tex. May 27, 2011): “So often we focus on what wasn’t done than what was done. It’s very vindicating to me that there was a litigation hold put in place, and that is what gave [Judge Jack] cover.” Indeed, sending legal holds provides evidence of reasonableness, as cited in Siani v. State Univ., 2011 WL2580361 (E.D.N.Y. June 28, 2011), where in spite of spoliation, their good faith efforts helped litigants escape sanctions.
When compared to last year, where the conversation centered on the need for written legal holds, today the discussion has evolved to questions concerning trigger events and the opportunity for proportionality. As Hon. Andrew J. Peck affirmed, cooperation (a.k.a. “proactive strategic information giving”) is a key to getting what you want.
2. Judges Expressed Reservations about Updating Rules
The buzz at the conference was around the ongoing work by the Judicial Rules Subcommittee on Discovery to consider amendments to the Federal Rules of Civil Procedure as a means to address rising costs of data preservation. Following the Dallas Mini-Conference held in early September, the process is in high gear and involved many of the participants in the room at the Georgetown conference.
Although recognizing to the challenges faced by litigants, the jurists in attendance expressed a distinct lack of enthusiasm about updating the FRCP with bright lines concerning pre-litigation preservation. As Judge Peck argued during the opening panel: “’Just do the right thing’ approach of cooperation is going to work. It is a very difficult practical problem, but I’m not sure there is any rule-based approach that’s going to solve the problem.”
In a later panel that directly addressed the topic of Rules changes, Judge Rosenthal added her thoughts on the subject:
The “proportionality” buzzword that has become so widely used in the past year is a way of describing reasonableness. If the argument is that you have to write a rule that says “go forth and be reasonable.” I think that just proves a little too much.
Don’t misunderstand the advocacy or enthusiasm for a rule change or the belief that it would be helpful for a belief that that’s all you need. The good news for all of you is that there are lots of resources available, in addition to the rules. Even if the rules are changed in a pretty thorough way, or even a limited way, changing the rules is never enough.
While most participants weighed in with their own thoughts, the feeling from the jurists was that pre-litigation preservation is a gray area and one that has so many variables that it requires judgment on a case-by-case basis, rather than expecting arbitrary bright lines to provide comfort for litigants. When one audience member suggested during the final Judicial Roundtable panel that Pippins v. KPMG opinion represented the end of proportionality, several judges were quick to point to the specifics of the case and the need for caution and due diligence when deciding what data is preserved or destroyed prior to discovery.
3. E-Discovery Pilot Programs Show Promise
Several ongoing pilot programs were referenced during various discussions which could provide valuable resources for litigants if they prove successful. The programs include:
- Southern District of New York’s Pilot Project Regarding Case Management Techniques for Complex Civil Cases
- Western District of Pennsylvania’s Electronic Discovery Special Masters
- Seventh Circuit Electronic Discovery Pilot Program
Judge Scheindlin described the program in her district as a proactive program aimed to streamline complex civil litigation. The program includes an ESI protocol to guide the parties through the particulars of electronic discovery and to bring to the forefront any issues they can’t agree on.
Hon. Joy Flowers Conti presented an in-depth overview of the program she is overseeing in the Western District of Pennsylvania. The court is recruiting a group of pre-qualified Electronic Discovery Special Masters to serve as a ready resource to the courts should disputes arise pertaining to electronic discovery issues.
Judge Rosenthal provided a prescient overview of the importance of these efforts during the Future of Rules panel:
What’s the difference, the advantage they have over rules? They don’t have to go through a rules enabling act process that at a minimum takes three years, and often more to become adopted. That’s a long time. In our world in three years, a lot changes and it forces us to a level of generality because if you write it too specifically, the technology will become obsolete before the thing becomes effective. Pilot programs can change on a dime and can be more helpful.
The judges look at these programs as experiments that can help identify new techniques to promote cooperation and reduce the involvement of the court in resolving ongoing friction related to electronic discovery.
As in the past, the presentations at Georgetown reflected the continuing evolution of what constitutes “e-Discovery best practices” while remaining true to the overarching goal of “just, speedy and inexpensive” resolution of issues. In the area of data preservation, the discussion is no longer if a legal hold needs to be issued, but rather on ways to reasonably limit the cost and burden of doing so through cooperation, reasoned thought and transparency.