Legal Research in an Electronic Age: Electronic Data Discovery, a Litigation Albatross of Gigantic Proportions

[Excerpt] “The increase in e-discovery, e-discovery‘s impact on litigation, and the courts‘ unavoidable role in defining the limits of discovery led to the author‘s decision to develop this article. The availability, accessibility, and the ease of requesting electronic data, resulting in increased e-discovery under the Federal Rules of Civil Procedure, is an important issue that will affect the legal profession and its constituents in many ways for years to come. Part II of this article is an overview of Federal Rule of Civil Procedure 26(f). This part stresses that in recognizing the herculean task involved in e-discovery, courts expect that litigants immediately begin the process of understanding what their cases require from an e-discovery standpoint. Part III highlights judges and cases that have had a clear hand in shaping the terrain of where electronic data discovery issues are heading. Part IV examines the ramifications of failing to comply with Federal Rule of Civil Procedure 26(f), illustrating the importance of Rule 26(f) in the litigation process. Abiding by the agreements that the parties reach under Rule 26(f) could avoid most, if not all, e-discovery problems. Part V examines problems associated with electronic data discovery. Part VI offers workable solutions to electronic data discovery concerns. Finally, Part VII concludes that even though the outer boundaries of e-discovery may be uncertain, judges, practitioners, and law schools must work together to ensure that exposure, training, and classes are available from the earliest possible time to ensure efficient and responsible adherence to the new requirements that the electronic age has brought to the litigation process.

Sanctions for E-Discovery Violations: By the Numbers

This Article reviews our comprehensive survey of written opinions from cases in federal courts prior to January 1, 2010, involving motions for sanctions relating to the discovery of electronically stored information (ESI) We analyzed each case for various factors, including date, court, type of case, sanctioning authority, sanctioned party, sanctioned misconduct, sanction type, sanctions to counsel, if any, and the protections provided from sanctions by Federal Rule of Civil Procedure 37(e) The survey identified 401 sanction cases and 230 sanction awards and showed that sanction motions and awards have increased over time, particularly in the last five years Sanctions against counsel are rare but are also increasing Sanction motions have been filed in all types of cases and in courts across the country Failure to produce ESI is the most common basis for sanctions Courts have used a variety of different rules, statutes, and powers to sanction parties for e-disco very violations, including Rule 37 and the inherent power of the court, and courts impose many different sanction types on e-discovery violators, including the severe sanctions of dismissal, default Judgment, adverse jury instructions, and sizeable monetary awards Rule 37(e) has not provided broad protection from such sanction

Sanctions for E-Discovery Violations: By the Numbers

This Article reviews our comprehensive survey of written opinions from cases in federal courts prior to January 1, 2010, involving motions for sanctions relating to the discovery of electronically stored information (ESI) We analyzed each case for various factors, including date, court, type of case, sanctioning authority, sanctioned party, sanctioned misconduct, sanction type, sanctions to counsel, if any, and the protections provided from sanctions by Federal Rule of Civil Procedure 37(e) The survey identified 401 sanction cases and 230 sanction awards and showed that sanction motions and awards have increased over time, particularly in the last five years Sanctions against counsel are rare but are also increasing Sanction motions have been filed in all types of cases and in courts across the country Failure to produce ESI is the most common basis for sanctions Courts have used a variety of different rules, statutes, and powers to sanction parties for e-disco very violations, including Rule 37 and the inherent power of the court, and courts impose many different sanction types on e-discovery violators, including the severe sanctions of dismissal, default Judgment, adverse jury instructions, and sizeable monetary awards Rule 37(e) has not provided broad protection from such sanction

The Attorney–Client Privilege and Discovery of Electronically-Stored Information

The attorney-client privilege is the most sacred and important privilege in our legal system. Despite being at the center of daily practice, the privilege still remains a mystery for many lawyers. This is primarily because the privilege is not absolute, and there are certain actions or non-actions that may waive it. The application of the privilege is further complicated by electronic discovery, which has both benefits and drawbacks. On one hand, it has made the practice of law more efficient. On the other hand, it has made it easier to inadvertently waive the attorney-client privilege in response to a discovery request. This iBrief examines attorney-client privilege issues that may arise during e-discovery, and provides practical guidelines for attorneys responding to e-discovery requests

Analog Solutions: E-discovery Spoliation Sanctions and the Proposed Amendments to FRCP 37(e)

The ever-increasing importance of digital technology in today’s commercial environment has created several serious problems for courts operating under the Federal Rules of Civil Procedure’s (FRCP) discovery regime. As the volume of discoverable information has grown exponentially, so too have the opportunities for abuse and misinterpretation of the FRCP’s outdated e-discovery rules. Federal courts are divided over the criteria for imposing the most severe discovery sanctions as well as the practical ramifications of the preservation duty as applied to electronically stored information. As a result, litigants routinely feel pressured to overpreserve potentially discoverable data, often at great expense. At a conference at the Duke University School of Law in 2010, experts from all sides of the civil-litigation system concluded that the e-discovery rules were in desperate need of updating. The subsequent four years saw a flurry of rulemaking efforts. In 2014, a package of proposed FRCP amendments included a complete overhaul of Rule 37(e), the provision governing spoliation sanctions for electronically stored information. This Note analyzes the proposed Rule and argues that the amendment will fail to accomplish the Advisory Committee’s goals because it focuses too heavily on preserving the trial court’s discretion in imposing sanctions and focuses too little on incentivizing efficient and cooperative pretrial discovery. The Note concludes by offering revisions and enforcement mechanisms that would allow the new Rule 37(e) to better address the e-discovery issues identified at the Duke Conference

E-discovery viewed as integrated human-computer sensemaking: the challenge of 'Frames'

In addressing the question of the design on technologies for e-discovery it is essential to recognise that such work takes place through a system in which both people and technology interact as a complex whole. Technology can promote discovery and insight and support human sensemaking, but the question hangs on the extent to which it naturally extends the way that legal practitioners think and work. We describe research at UCL which uses this as a starting point for empirical studies to inform the design of supporting technologies. We report aspects of an interview field study with lawyers who worked on a large regulatory investigation. Using data from this study we describe document review and analysis in terms of a sequence of transitions between different kinds of representation. We then focus on one particular transition: the creation of chronology records from documents. We develop the idea that investigators make sense of evidence by the application of conceptual ‘frames’ (Klein et al’s, 2006), but whilst the investigator ‘sees’ the situation in terms of these frames, the system ‘sees’ the situation in terms of documents, textual tokens and metadata. We conclude that design leverage can be obtained through the development of technologies that aggregate content around investigators’ frames. We outline further research to explore this further

Discovery-led refinement in e-discovery investigations: sensemaking, cognitive ergonomics and system design.

Given the very large numbers of documents involved in e-discovery investigations, lawyers face a considerable challenge of collaborative sensemaking. We report findings from three workplace studies which looked at different aspects of how this challenge was met. From a sociotechnical perspective, the studies aimed to understand how investigators collectively and individually worked with information to support sensemaking and decision making. Here, we focus on discovery-led refinement; specifically, how engaging with the materials of the investigations led to discoveries that supported refinement of the problems and new strategies for addressing them. These refinements were essential for tractability. We begin with observations which show how new lines of enquiry were recursively embedded. We then analyse the conceptual structure of a line of enquiry and consider how reflecting this in e-discovery support systems might support scalability and group collaboration. We then focus on the individual activity of manual document review where refinement corresponded with the inductive identification of classes of irrelevant and relevant documents within a collection. Our observations point to the effects of priming on dealing with these efficiently and to issues of cognitive ergonomics at the human–computer interface. We use these observations to introduce visualisations that might enable reviewers to deal with such refinements more efficiently

Reasonableness in E-Discovery

Issues of reasonableness arise regularly throughout American law. Reasonableness is a concept central to tort law, which imposes a reasonable person standard in ascertaining duty. Criminal guilt turns on a reasonable doubt standard. And in civil discovery, the concept of reasonableness features prominently: discovery\u27s scope reaches information that is reasonably calculated to lead to the discovery of admissible evidence, and discovery cannot be unreasonably cumulative or duplicative. Reasonableness standards require judges to undertake an objective, rather than subjective, evaluation. E-discovery specifically has two significant overarching reasonableness components: reasonable accessibility for production and reasonable care in preservation and disclosure. The interpretation of these two components plays a central and determinative role in the effectiveness and burdensomeness in discovering electronically stored information. This Symposium Article addresses the first of these two components - reasonable accessibility - analyzing the guidance available on this issue from the case law and commentators and concluding that current approaches to reasonable accessibility often fail to employ the required objective reasonableness standard. Current approaches tend to err in two prominent ways: (1) by relying inappropriately on informational classifications, and (2) by merging distinct standards into a single standard. Of particular significance, Federal Rule 26 creates a twofold reasonableness interpretation - both with respect to what constitutes reasonable accessibility and also with respect to what constitutes undue burden or expense. However, rather than undertaking an objective, fact-specific inquiry of reasonable accessibility, some courts are relying on categories for presumptive accessibility or inaccessibility. In addition, many courts appear to be evaluating undue burden or expense as one conflated standard that considers only cost