Highlights from the ACEDS 2014 E-Discovery Conference

The ACEDS E-Discovery Conference was a well-organized conference at a nice venue with two full days of informative sessions.  Copies of all slides were provided to attendees, so my note-taking was mostly limited to things that weren’t on the slides, and reflects only a tiny fraction of the information presented.  Also, there were sometimes two simultaneous sessions, so I couldn’t attend everything.  If you attended, please let me know if you notice any errors in my notes below.

• There is some reluctance to use TAR (technology-assisted review) due to a fear that disclosure of the seed set, including privileged and non-responsive documents, will be required.
• Royce Cohen said there was a recent case where documents couldn’t be clawed back in spite of having a clawback agreement because attorneys’ eyes had not been put on the produced documents.
• A few years ago, use of TAR was typically disclosed, but today very few are disclosing it.
• Regarding the requirement for specificity rather than boilerplate in e-discovery objections, Judge Waxse recommended that everyone read the Mancia v. Mayflower Textile Services opinion by Judge Grimm.
• Judge Waxse said he resolves e-discovery disputes by putting the parties in a room with a video camera.  “Like particles in physics, when lawyers are observed their behavior changes.”
• The tension between e-discovery cooperation and zealous advocacy of clients was discussed.  It was pointed out that the ABA removed “zealous” from the Model Rules of Professional Conduct (aside from the preamble) in 1983 (sidenote: related article).  John Barkett noted that the Federal Rules of Civil Procedure (FRCP) trump ethics rules, anyway.
• The preservation trigger is unchanged in the proposed changed to the FRCP.
• Stephen Burbank said that if the changes to the FRCP get to Congress, blocking them would require legislation by Congress.  It is unlikely the divided Congress would get together to pass such legislation.
• Judge Waxse said he didn’t think the proposed changes to the FRCP would have a significant impact on proportionality.  The problem with proportionality is not where it is located in the rules, but the difficulty for the court to decide the importance of the case before the trial.  He also mentioned a case where one side wanted a protective order claiming e-discovery would cost $30 million, but then dropped that to $3 million when questioned, and ended up being only thousands of dollars.  He said judges talk to each other, so be careful about providing bad cost estimates.
• On the other hand, Judge Hopkins expects a sea change on proportionality from the new rules.
• Judges Hopkins and Otazo-Reyes both said that phasing (e.g., give one out of fifteen custodians to start) is an important tool for proportionality.
• Judge Waxse said it is important to establish what is disputed before doing discovery since there is no point in doing discovery on things that aren’t disputed.
• Judge Waxse said he thinks it is malpractice to not have a 502(d) order (clawback agreement) in place.
• Judge Hopkins said that when documents are clawed back they cannot be “used,” but that is ambiguous.  They can’t be used directly in trial, but can the info they contain be used indirectly when questioning for a deposition?  Prohibiting indirect use could require changing out the litigation team.
• Bill Speros expressed concern that the “marketing view” of TAR (that courts have said clearly that it is OK, and that past studies have proven that it is better than linear review), which is inaccurate, may feed back into the court and distort reality.
• Bill Speros predicted that random sampling will fail because prevalence is too low, making it hard to find things that way.  He warned that the producing party may be happy to bring in additional custodians to dilute the richness of the document set and reduce the chances of finding anything really damning.
• Mary Mack said that predictive coding has been successfully used by receiving parties.
• Bill Speros said we should look at concepts/words rather than counting documents to determine whether predictive coding worked.  He pointed out that a small number of documents typically contain a large amount of text, so weighting on a document basis tends to undercount the information in the long documents.
• When trying to control e-discovery costs, some red flags are: lack of responsiveness, no clarity in billing, and lots of linear review.
• Seth Eichenholtz warned that when dealing with international data you have to be careful about just stuffing it all onto a server in the U.S.
• When storing e-discovery data in the cloud, be aware of HIPAA requirements if there are any medical records involved.
• Law firms using cloud e-discovery services risk losing the connection with the client to the cloud service provider.
• Be careful about your right to your data in the cloud, especially upon termination of the contract.
• In one case a cloud provider had borrowed money from a bank to purchase hard drives and the bank repossessed the drives (with client data) when the cloud provider had financial trouble.
• Be careful about what insurance companies will cover when it comes to data in the cloud.
• With TAR, 75% recall is becoming a standard acceptable level.
• It’s easier to get agreement on using TAR when both sides of the dispute have a lot of documents, so both benefit from cost savings.
• Data should have an expiration date, like milk.  If no action is taken to keep it, and there is no litigation hold, it should be deleted automatically.
• Predictive coding allows review of the documents that are most likely to be relevant earlier, before the reviewer becomes fatigued and more likely to make mistakes.
• Jon Talotta said some law firms internalize e-discovery (rather than outsourcing to a vendor) at no profit to keep the relationship with the client.  Some law firms make good money on e-discovery, but only because they are able to make full utilization of the capacity and they have clients that don’t have their own relationships with e-discovery service providers.
• A survey of the audience found that most law firms represented were just passing the e-discovery cost through to the client without trying to make a profit.
• Bill Speros said there may be ethical issues (ancillary services) around law firms trying to make a profit on e-discovery.

I want to thank Marshall Sklar for suggesting a correction to my notes.