At eDiscovery 2.0, we have consistently followed the reports that Gibson Dunn has released on the state of eDiscovery. This is for good reason given its reputation as an excellent source of information on the trends affecting individual organizations and the industry as a whole.
The recently released 2012 annual report is no different, except that the overall tone is more positive. Instead of spotlighting the continuing problem of sanctions, the report showcases predictive coding and rules reform as the key eDiscovery trends leading into 2013. Describing these trends as being potential game-changers, the report also notes that “many questions remain” and warns that the impact of these trends may affect organizations in unanticipated and perhaps troubling ways.
In its report, Gibson Dunn happily indicates that unlike previous years, predictive coding technology appears to be ready for prime time. With several decisions from 2012 expressly or tacitly approving the use of predictive coding, the report speculates that many organizations and their counsel could become adopters of the technology. As the technology becomes more widespread and additional court decisions provide judicial imprimatur to the technology, the prospects increase that predictive coding could “drastically alter the way in which documents are reviewed for production.”
Nevertheless, challenges remain before this gradually increasing trend becomes a fully blown industry norm. While the promise of predictive coding is in its potential for rapid and cost effective document review, the report questions whether the technology will live up to that hype. Indeed, Gibson Dunn asks whether predictive coding is like any other review tool: “is it merely the latest review technology that, while useful, neither obtains widespread adoption nor revolutionizes the landscape?” Such questions are particularly legitimate given the substantial costs associated with most of the reported predictive coding cases. Indeed, the recent case of Gabriel Technologies v. Qualcomm exemplifies this predictive coding cost paradox.
Another positive industry development that is fraught with questions concerns potential changes to the Federal Rules of Civil Procedure. As the report indicates, the federal Civil Rules Advisory Committee has made significant progress on a proposed draft amendment to Rule 37(e). Designed to broaden the existing protection against sanctions, the proposal would theoretically safeguard an organization’s pre-litigation destruction of information from sanctions in most circumstances. The lone exceptions would include destruction that was “willful or in bad faith and caused substantial prejudice in the litigation” or that “irreparably deprived a party of any meaningful opportunity to present a claim or defense.” While such a rule undoubtedly could reduce the costs and risks associated with ESI preservation, ambiguities in the draft language, together with statements in the draft advisory committee note, could ultimately water down the proposal’s intended protections.
Another encouraging rule change being considered by rules-makers includes an effort to better emphasize proportionality limitations on the Rule 26(b)(1) permissible scope of discovery. While characterized by the report as an “underused” though “increasingly important” doctrine, a proportionality amendment to Rule 26(b)(1) could do much to bring the problematic costs and delays of eDiscovery under control.
The report also sounded a note of caution on the proportionality front. Referring to the Sedona Conference’s recently updated Commentary on Proportionality in Electronic Discovery, the report observes that technology will be a key aspect in any proportionality analysis. With that background, Gibson Dunn cautions against misusing the efficiencies of cutting edge eDiscovery technologies to increase the scope of production under the guise that such discovery will comport with proportionality principles:
Litigants and courts will therefore need to be vigilant in preventing the use of such technologies from becoming a justification for expanding the scope of discovery beyond an appropriate focus on documents relevant to the issues in dispute, and thereby exacerbating the very problems that technologies seek to address.
Other Industry Trends
Gibson Dunn spotlighted several other key trends from 2012 in its 33-page report. Among them were developments in cross-border eDiscovery, the increasing importance of foreign data protection laws, congressional attempts to bolster domestic privacy regulations, the correlation between ESI preservation and courts sanctions, and discovery of information found on social networking sites. These and other industry trends confirm that “progress is being made in addressing e-discovery’s challenges[,] [t]he dense fog that often seems to surround e-discovery appears to have lifted somewhat, and the collective anxiety lowered a little.”
Despite such sanguine observations, risks remain for organizations and their lawyers. The report concludes by raising the specter of sanctions, which will likely continue to be an unpredictable hobgoblin unless meaningful rules reform takes place. Until that time, clients and counsel alike should be proactive in adopting industry best practices to better ensure compliance with existing rules and jurisprudence.