Five Highlights of Georgetown’s Advanced eDiscovery Institute
I attended Georgetown CLE’s e-discovery conference last week in Tyson’s Corners, Virginia. The conference, now in its ninth year, had over five hundred attendees and an impressive roster of speakers, including some of the most prominent judges in the e-discovery world. While I won’t recap here everything I learned at the conference, below are five of my top takeaways from the conference.
First and foremost, there was a general consensus that many litigants, particularly large companies, now overpreserve data out of a fear of discovery sanctions. While there is no general agreement on how to address this problem there was discussion of two proposed rule changes that may address this issue. Federal Rules of Civil Procedure 26(b) and 37(e) may be modified in the coming year to limit the imposition of sanctions for discovery problems and to tie the scope of relevant discovery to include a reference to proportionality. As Philip Favro argued at the conference and on Twitter, however, these modifications won’t work unless they’re cross-referenced with Rule 26(g)(1). Judge Scheindlin is also pushing for the addition of a preservation rule to the Federal Rules, which she believes would assist litigants with their preservation obligations (her ongoing belief in the importance of written preservation requirements is not surprising, of course, in light of some of her opinions). Judge Grimm, meanwhile, believes that the scope of discovery allowed under the rules should be narrowed.
Second, more lawyers need to appreciate the value of Federal Rule of Evidence 502(d). The judges discussed this rule at length and Judge Peck said, in fact, that it could be legal malpractice for lawyers not to seek a 502(d) order. Judge Grimm says he enters a 502(d) order as a matter of course in all of his cases (although he gives parties a chance to opt out of it), while the other judges preferred to leave that decision to the parties. But the message was consistent: study this rule and seriously consider seeking such an order in federal cases going forward.
Third, in the international realm, data preservation and collection is getting trickier, not easier. Data regulators have been increasing their oversight in the past few years and there are more laws, not less, that now impact a U.S. litigant’s ability to preserve and collect data from other nations. In fact, in some situations, other nation’s laws can specifically require the destruction of certain data within a set amount of time, which would run afoul of a party’s obligation to preserve data while it’s working on discovery. On the flip side, if a litigant is seeking to preserve data in another nation, there could be laws that the litigant can use to its advantage (i.e., there’s apparently a law in Mexico requiring certain contracts to be preserved for ten years, so such a law could be of assistance if you’re trying to preserve those types of documents for a potential or ongoing case).
Fourth, when developing information governance and document retention policies, accessibility to the data is an issue that can’t be ignored. A defensible deletion policy is an important part of any information governance plan, of course, but there is also going to be data that will need to be preserved for long periods of time (e.g., for statutory or litigation-related purposes). Such data, depending on the form it is in, may not easily be accessible in the future, which is a possibility that will need to be addressed when creating an information governance policy.
Finally, I was surprised by the vocal dislike for privilege logs that was expressed not only by lawyers but by judges. As Judge Facciola succinctly put it, “I’ve read my last damn privilege log.” Everyone agreed that privilege logs take up massive amounts of time and paper, but rarely reveal anything useful. While there was no consensus on how to resolve the problems with privilege logs, it’s clear that this is an issue that will be a future focus of e-discovery practitioners and judges.
These are just some of the takeaways from the conference, which not only provided a lot of useful information but also gave me the opportunity to meet a lot of fellow attorneys, vendors, and some great judges. I’m looking forward to next year’s conference!