Last week I attended the 8th Annual Sedona
Conference Institute Program, “eDiscovery in a New Era: New Technologies, New
Media, New Rules.” During the initial session, leaders polled the audience as
to how many were first-timers at the event, and a significant number of attendees
raised their hands. I've attended the annual event for the past four years, and am encouraged to see more people taking an interest in improving their e-discovery
processes.
Zubulake Opinions Still the Standard
This year’s program focused on drawing a finer point
on specific issues. Case law is always of interest, but discussions still
mostly continue to refer back to cases such as the now classic Zubulake v. UBS Warburg, which led to the issuance of a
groundbreaking series of opinions on electronic discovery from Judge Shira
Scheindlin prior to the 2006 amendments to the Federal Rules of Civil Procedure
(FRCP). At the 2014 Sedona Conference Institute Program and going forward, we are simply
further defining the questions at issue. No sea change in opinion or
ramifications of these opinions was in evidence this week.
The discussion on the impending proposed changes to the FRCP
was lively and, I believe, important, because we business attorneys must stay
educated on those changes in order to adopt new best practices that lower e-discovery
risk. Over 2, 200 comments were submitted online before the public comment
period concluded.
Proposed FRCP Rule
Changes
Certain hot-topic issues emerged from the public comments.
For example, there was quite a bit of fervent discussion on changing Rule
37(e). The proposed revision could help organizations lower the costs of
preservation by reducing the potential for being sanctioned for routine,
inadvertent, good-faith destruction of electronically stored information (ESI).
Instead, the revised rule would raise the standard for sanctions so that only
knowing or willful destruction of ESI would be penalized.
The street view of proposed revisions to Rule 26(b)(1) is
that the issue of proportionality is being moved up in the rules to give it a
higher profile, but discussion at Sedona teased out some additional nuances about its
potentially more prominent new position.
TAR Not on Judicial Radar
Yet
During one session, a comment was made that there aren’t yet
a lot of technology-assisted review (TAR) cases making it to courts. My take is
that, while TAR may be increasingly in use, it’s not making its way up to the
courts very often for decisions on whether or not the methodology is judicially
acceptable.
People, Technology,
Process: A Hybrid Approach May Make Sense
The last panel on the opening day was about how to make a business
case for e-discovery. Panelists played various roles as e-discovery technology
vendors, outside counsel, or in-house counsel. The first go-round required each
one to advocate for his or her model. In the end, it seemed everyone agreed
that a hybrid approach was best. There is no one-size-fits-all when it comes to
e-discovery; it’s best to decide on a case-by-case basis, with some outside
help on larger cases.
At Guidance Software, we see that our customers need to
bring e-discovery in-house when they reach a point of needing to respond to
more than one big case a year. Having an easily accessible Central Legal Repository
in EnCase eDiscovery provides them with a secure virtual workspace where both
inside and outside counsel can work on multiple matters without duplicating
efforts.
Whether e-discovery is a major focus for your legal team
this year or is just coming into focus, the Sedona Conference Institute Program
is a highly productive way to stay up-to-date with emerging best practices.
Did You Attend? I
welcome your comments in the Comments section below.
Chad McManamy is an Assistant General Counsel at Guidance Software.
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