Why eDiscovery Is Important To All Of Us
Technology columnist Jeff Bennion interviews leaders of the influential Sedona Conference to see what we can hope to learn about the future of discovery.
A few weeks ago, I was brainstorming with a judge about upcoming CLEs that I should be planning for the California State Bar. He did not hesitate to tell me that my number one priority should be eDiscovery. It’s creeping into everything now. Soon, it’s not going to even be called eDiscovery. It will just be called discovery and paper discovery will be called pDiscovery. The problem is that litigators can quickly find themselves in the middle of an eDiscovery dispute, and without understanding the nuances, can create a world of mess for themselves with the state bar ethics committee, or with their client if they fail to properly supervise a litigation hold.
Business litigators: What are your clients’ data archiving policies? BYOD policies?
Employment lawyers: How does Facebook’s and Google’s ability to allow a user to download all of their account history affect your ability to ask for/duty to provide all relevant data in your possession, custody or control?
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All litigators: Do you know what the Internet of Things is and how it relates to your case?
It’s going to be something that all litigators are going to have to know, not just defensively to respond to requests, but also offensively to gain a civil procedure advantage over opposing parties who are less savvy.
The Sedona Conference is one of the most influential organizations in the United States regarding eDiscovery. It is putting on its 10th Annual Sedona Conference Institute Program on eDiscovery and I decided to reach out to the program co-chairs, Lea Bays and Karin Jenson, and Deputy Executive Director of The Sedona Conference, Ken Withers, to see what we can hope to learn about the future of discovery.
Caveat: Their views expressed here are solely their own and not of the firms or organizations with which we are associated or clients they may represent.
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Lea Bays, Program Co-Chair
Lea is Of Counsel at Robbins Geller Rudman & Dowd LLP, a plaintiffs’ firm with an emphasis on complex class action securities, antitrust, and consumer litigation. Lea focuses her practice on electronic discovery issues that arise in the firm’s cases.
Karin Scholz Jenson, Program Co-Chair
Karin is a partner in BakerHostetler’s New York office and, as national leader of the firm’s EDiscovery Advocacy and Management Team, typically represents defendants, although she also coordinates discovery across hundreds of cases as plaintiff’s counsel to Irving Picard, the Trustee to the liquidation of Bernard L. Madoff Investment Securities. While Lea and Karin are typically on the opposite side of litigation (and have been known to have a spirited debate), the two share the belief that discovery in litigation is at its best when adversaries are honest and open.
Ken Withers, Deputy Executive Director of The Sedona Conference
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Ken advises the Steering Committees on their activities, helps organize the CLE events (with a special emphasis on judicial education), and tries to keep up with developing case law and rules in the areas of concentration.
JB: What is the Sedona Conference? Who makes up the membership/leadership of the Conference?
Ken: The Sedona Conference (TSC) is a 501(c)(3) non-profit educational institution dedicated to the “reasoned and just development of the law,” primarily in the areas of complex civil litigation, antitrust, and intellectual property. Except for a small administrative staff in Phoenix, we are an all-volunteer organization, with approximately 1100 lawyers, judges, government officials, legal technologists, legal academics, and related professionals in our “Working Group Series.”
There are 11 Working Groups, six of which are currently active, that study cutting-edge issues in the law and develop consensus-based tutorials, best practices, guidelines, and Principles. Each working group is open to all and governed by a Steering Committee made up of senior professionals in that topic area. We strive to make sure that Steering Committees are balanced and representative of the relevant stakeholders: plaintiffs, defendants, in-house counsel, government attorneys, subject-matter experts, large firms, small firms, big coastal city firms, smaller heartland city firms, etc.
The upcoming Sedona Conference Institute (TSCI) program is the 10th annual CLE utilizing the materials produced by Working Group 1, which concentrates on eDiscovery and electronic records management issues.
Lea: The Conference engages thought leaders from the bench and bar – many with differing points of view – who are highly knowledgeable and enthusiastic about the issues surrounding electronic discovery. Members of Sedona’s volunteer working groups devote a great deal of time to Sedona’s mission by being part of brainstorming groups and drafting documents that provide thoughtful and practical commentary on eDiscovery issues.
JB: How has the Sedona Conference gotten to the point where it is so influential?
Ken: The unique characteristics of TSC are that it is non-partisan, neutral, and broadly representative. We work using a dialogue process, where all members have an opportunity for input on draft papers, whether by volunteering for a drafting team, by participating in dialogue at our meetings and on line, or by submitting comments to drafts-in-progress. We don’t take votes – instead, we attempt to reach consensus. This takes longer and sometimes frustrates members and the general public, but the results of the process are position papers that are widely respected as well-informed, practical, and scrupulously non-partisan. This has earned us the respect of judges and legal academics, who consider Sedona Conference publications to be something of a gold standard.
In addition, TSC is a true public charity. We take no large donations or foundation funding. No single source of funding constitutes more than 2% or our operating budget. This keeps us from becoming associated any particular industry, interest group, or side of the litigation “v.”
Lea: Evolving technology has brought changes as to how discovery is conducted. The Sedona Conference was at the forefront of this movement. Sedona established a working group that was dedicated to developing principles, guidance, and best practices for electronic discovery over a decade ago. Sedona was way ahead of the game and was immediately poised to provide education and guidance to judges and lawyers on these issues. The Sedona Conference’s unique approach of using dialogue and consensus, and the in-depth process that this requires, also means that the work product that comes out of The Sedona Conference is unique and high quality.
JB: Why is eDiscovery important to litigators outside class action/mass torts/complex litigation?
Ken: The fact is that there is no document discovery these days that isn’t eDiscovery. Single-plaintiff employment matters, small commercial disputes, divorce, personal injury – all the evidence is now routinely created, collected, and produced in electronic form. Email, word processing, financial data, social media postings – even if it’s printed on paper, it was probably printed from a computer file. And even in the smallest cases, lawyers need to be aware of how to handle ESI to keep discovery responsive, efficient, and proportional to the fact-finding needs of the case.
Lea: Electronically stored information will likely work its way into every case, but the volume and complexity may differ. Regardless of how it impacts your particular practice, it is important to note that eDiscovery issues will likely shape the laws that everyone has to follow. The 2015 Amendments to the Federal Rules of Civil Procedure are a prime example.
Karin: I actually believe that eDiscovery can be important in all litigation, and it is important for litigators to pay attention to these issues now. For example, I consult on employment litigation and bankruptcies, where if eDiscovery isn’t handled properly, you run the risk of making the lawsuit cost more than what is at stake. Just as importantly, proper management and advocacy can make all the difference in terms of resolving what’s in dispute. Identifying, collecting, searching, and producing information electronically can help you make connections that you might otherwise miss, get to the answer faster, and keep the case on the merits. I believe this efficient approach matters to our clients.
JB: Where do you see eDiscovery going in the next five years?
Ken: Social media has crept into every aspect of our lives, creating rich sources of discovery that simply didn’t exist in the past. And the “Internet of Things” means that even inanimate objects like cars, medical instruments, and clothing will be capable of recording, generating, and transmitting data that could be crucial to a case.
Lea: Technological advances have brought some unique challenges to the discovery process, but they have also brought solutions. I imagine that as technology continues to evolve, more unique issues will arise but also be accompanied by more advanced solutions. We may or may not see TAR become the standard. Even if we do, we might see it disrupted by some new technology that has even greater promise but brings with it all the unanticipated issues associated with new ideas. All the new forms of communications will create more and more potential avenues for discovery. We are seeing all of these issues now, but we will see them develop further over the next five years.
Karin: The short answer is we will include within the scope of discovery things beyond email and Word documents to include data from the analytics and the Internet of Things that our clients are conducting, or the data being collected with respect to the adversary’s claims. But the question raises two issues – first, what our clients are doing, and second, how eDiscovery will play out in litigation. As to the first, our clients are constantly introducing new technology to be better businesses. For example, a client may use new technology to monitor how many frozen pizzas it sells at each place they sell the pizzas, and those where it sells more, it ensures that enough pizzas are available. The client is constantly searching for the best technology to help it decide how many pizzas to provide. As to the second point, lawyers need to be aware of what technology our clients are using because it goes back to the point I made earlier – the power of eDiscovery is to get to the answer faster and with less expense. If the lawsuit is about a shortage of pizzas, we need to know how to pull data from the client’s pizza supply analysis. Producing hundreds of thousands of emails may be important, but unnecessary if the answer is in the data. This is why I think it is so important for companies to consider hiring “eDiscovery counsel” – if you get sued often, consider hiring counsel who knows your systems and data and understands your unique challenges.
JB: Do you think the recent amendments to the FRCP have solved any significant problems litigators face in eDiscovery?
Ken: It’s way too early to tell, and some of the early reported court decision either ignore the new rules or still cite pre-rule precedents. There will be a shaking-out period during which the new rules will actually raise more questions than they answer. But my personal view is that the increased emphasis on proportionality will make litigators think more before they generate boiler-plate discovery requests and responses; the case management rules will require that judges be more engaged in the cases that require their attention; and the new Rule 37(e) will decrease the conflicts between the federal circuits on the standards for imposing sanctions for failing to preserve relevant ESI.
Lea: The degree and root of problems that litigators faced in electronic discovery is up for debate. As evidenced by the extreme controversy over the 2015 amendments, many civil rights and plaintiffs’ attorneys viewed the complaints regarding disproportionate discovery as being largely unfounded or exaggerated. The danger is that problems that never existed can never be solved. However, I am hopeful that the amendments regarding the timing of document requests and the specificity required in the objections will reinforce the importance of a meaningful Rule 26(f) conference and will reduce delay in discovery.
Karin: Are you just trying to pick a fight between me and Lea? I firmly believe that the changes will have significant impact, if followed. The biggest change, in the aggregate, is that lawyers will do more work up front, will disclose more to their adversaries, and our clients will face less consternation later in litigation. It’s been three months and I’ve already confirmed that truth.
JB: What can people do if they want to stay ahead of the curve regarding eDiscovery?
Ken: Join The Sedona Conference and get involved! Nothing teaches you more about a topic than having to research and write about it, and then defend your work before your peers. And the opportunity to network and share with thought leaders from around the country is invaluable.
Lea: Becoming involved in The Sedona Conference would be an excellent start. Karin and I are co-chairing the 10th Annual Sedona Conference Institute’s Program on eDiscovery in San Diego on March 17-18. This program would be a great way to get involved now. Even if you are not able to attend the programs offered by The Sedona Conference, many of the publications can be accessed on the website for free.
Karin: I agree! Or call or email me or Lea.
Earlier: Everything You Need to Know About The New FRCP Amendments
Jeff Bennion is Of Counsel at Estey & Bomberger LLP, a plaintiffs’ law firm specializing in mass torts and catastrophic injuries. He serves as a member of the Board of Directors of San Diego’s plaintiffs’ trial lawyers association, Consumer Attorneys of San Diego. He is also the Education Chair and Executive Committee member of the State Bar of California’s Law Practice Management and Technology section. He is a member of the Advisory Council and instructor at UCSD’s Litigation Technology Management program. His opinions are his own. Follow him on Twitterhere or on Facebook here, or contact him by email at jeff@trial.technology.
