December 4th is eDiscovery Day, which is one of the largest gatherings of legal professionals in locations across the United States. Here at Consilio, we are happy to celebrate a day recognizing what we do and how we help our law firm and corporate clients. During the day, we will be attending events across the US, sponsoring a social event that evening, and our very own Judy Torres will be participating in a webinar on Stellar Women in eDiscovery.
As the practice of discovery has evolved over the years, its importance in legal departments has continued to grow. In the second half of the 20th century, laws and regulations were beginning to be updated with advancements in digital technology. After the year 2000, the focus shifted to figuring out how to make eDiscovery faster and more efficient while reducing costs. Here, we highlight eDiscovery as an integral part of the litigation process through a timeline of how it came to be:
Dates, times, and essentially data, which describes other data begin to play a part in the world of law. Metadata connects the dots between one piece of data and its relation to another, and example being the early use of card catalogues in libraries.
FRCP Rule 34
The amendment of Rule 34 of the Federal Rules of Civil Procedure gives way to a big break in the inclusion of discoverable data. This purpose of this revision was to keep up with ever-changing technology.
Earliest Litigation Support Software
The release of Summation and Concordance paved the way for the load files used in discovery today.
CD Litigation Images
For the first time, litigation images are delivered on CDs. This was significant in that the images were compatible with use on a basic PC.
EU Data Protection
The Data Protection Directive was put into place as part of the privacy and human rights law. The directive focuses on the processing of sensitive data within the confines of the EU.
Handling Early ESI
Guidance software was founded with the intent of handling Electronically Stored Information (ESI). This was one of the first means of ESI preservation and analysis.
The United States and EU reached an agreement on citizens’ data privacy based on the International Safe Harbor Privacy Principles. This allowed European firms to transfer personal data to firms in countries with weaker data protections. The firms in other countries would voluntarily comply with EU standards in order to handle the sensitive European information.
The fall of Enron, which also took down consulting firm, Arthur Anderson, paved the way for stringent corporate regulations to be swiftly enacted. This period of time was defined by stricter measures enforced with the intention of ensuing proper information governance.
Zubulake v UBS
The Zubulake v UBS employment discrimination suit resulted in a series of groundbreaking decisions for the world of eDiscovery. The court ruled that responsibility of document production, regardless of cost or difficulty, “turns primarily on whether it is kept in an accessible or inaccessible format”.
The Electronic Discovery Reference Model was introduced to segment the flow of the eDiscovery process. This is now the generally-accepted concept used in the practice today.
Technology-Assisted Review was introduced to streamline the review process. TAR was intended for use as a tool to help reviewers cut down on time and cost.
Native Format Review Increase In Popularity
After 2004, native format review gained popularity amongst reviewers. Native format review allowed for better preservation of evidence. Default file formats made it so users could review and save various documents in a default file format.
FCRP and ESI
With new mandates, FRCP further defines the scope and rules surrounding discoverable material and the discovery process in good faith.
eDiscovery software provider kCura introduced Relativity. Relativity was a game-changer as it opened the platform for developers to access and made it possible to customize the platform further with automation tools.
Qualcomm Inc v Broadcom Corp
At the end of the Qualcomm v Broadcom trial, the court ruled help corporations responsible for their attorney’s noncooperation and inability to produce documents. During litigation, it was found that Qualcomm made several large errors in what they had reported in documents to the courts.
In addressing parties’ non-cooperation during the eDiscovery process, the Sedona Conference released the Cooperation Proclamation. The proclamation tackled the burden of extremely high costs that non-cooperation places on the legal system.
Defining Appropriate eDiscovery Measures
In a series of court rulings dealing with the quality of review and discovery, attorney-client privilege and attorney gross negligence is further defined. A judge ruled in favor of evidence preservation, stating that failure to provide a decent search will result in the waiver of attorney-client privilege. Additionally, another ruling stated that it is the attorney’s responsibility to issue a legal hold, and to not would be gross negligence.
The Fall of Manual Review
In Anne Kershaw’s study, “Document Categorization in Legal Electronic Discovery: Computer Classification vs. Manual Review”, Technology-Assisted Review proved to be just as, if not more accurate, than traditional human review.
In order to further automate the review process, Recommind introduced “predictive coding”. This predictive coding laid the groundwork for automation in review today.
Judge Peck states that TAR is superior to manual review and should be used in all appropriate cases.
A court rules that the only recoverable costs associated with eDiscovery deal with file scanning and conversion.
eDiscovery Best Practices
In Tadayon v. Greyhound Lines, Inc., the presiding judge states that combative discovery can circumvent justice and amount to unreasonably high costs. Furthermore, parties must comply with the best practices set in the Sedona Conference’s Cooperation Proclamation.
Continuous Active Learning (CAL) yielded “generally superior results” to TAR 1.0. This new TAR, required less human input and produced higher efficiencies and productivity.
Safe Harbor Thrown Out
US data privacy laws were found to not up to par with EU regulations. As a result, the EU threw out Safe Harbor as it was felt US corporations were not voluntarily operating at the level at which EU data safety laws operated.
EU-US Privacy Shield Agreement
In response to the nullification of Safe Harbor, the EU and US enact the EU-US Privacy Shield Agreement. This further regulated the flow of information at a level, which the US can easily retrieve EU data while the sensitive data is still protected.
The EU’s General Data Protection Regulation addresses protection and transfer of citizens’ data within and outside of borders. GDPR has been extremely consequential in how data is handled today. Under GDPR, individuals have specific rights outlined:
- The right to be informed.
- The right of access to personal data through subject access requests.
- The right to rectification.
- The right to erasure.
- The right to restrict processing.
- The right to data portability.
- The right to object.
Similarly to GDPR, CCPA was passed for the purpose of personal data protection in the State of California. Citizens also have specific rights outlined here:
- Know what personal data is being collected about them.
- Know whether their personal data is sold or disclosed and to whom.
- Say no to the sale of personal data.
- Access their personal data.
- Request a business to delete any personal information about a consumer collected from that consumer.
- Not be discriminated against for exercising their privacy rights.