Every week, the Array team reviews the latest news and analysis about the evolving field of eDiscovery to bring you the topics and trends you need to know. This week’s post covers the period of December 1-7. Here’s what’s happening.
Litigation Support Directors Say Data Growth Presents Challenges
The increasing rate and variety of eDiscovery data is causing many litigation teams to consider upgrading their case management systems, according to a new report by Ari Kaplan Advisors sponsored by Opus 2.
The survey of 30 litigation support directors, including eDiscovery, found that 60% of respondents say the continued growth of case data volume presents challenges for their team. Further, 20% acknowledged they have insufficient technology for their teams to succeed. The survey also found the median number of cases the respondents manage in an average year is 200, and 83% expect their portfolio to grow in the next 12 to 18 months. Additionally, 93% reported that the volume of data they manage for an average dispute is increasing.
“Growth is creating a challenge, but the data sources and types are more concerning than volumes,” one respondent said.
Scalable technology, including Gen AI that can analyze ESI, is just one tool to tackle the increase in data litigation teams must sift through to build their cases. An experienced eDiscovery team can help your team deal with emerging data types and sources so you aren’t missing key facts.
In Dispute over TAR Agreement, EDNY Refuses “Discovery on Discovery”
The U.S. District Court for the Eastern District of New York recently refused a motion by the plaintiffs in a multidistrict product liability litigation to require the defendant to provide sample sets of non-responsive documents as part of their agreement on technology-assisted review (TAR).
In the case In Re: Exactech Polyethylene Orthopedic Products Liability Litigation, plaintiffs allege they were injured by defective liners in defendant’s hip, knee, and ankle implants. The parties had agreed to a TAR protocol, with the exception of a single provision regarding review of a sample of documents. Plaintiffs sought to review the non-privileged documents that had been marked non-responsive. The disputed provision read in part:
Following this review of the ESTIMATION SAMPLE, the Exactech Defendants agree to make available to Plainitffs the non-privileged documents coded as non-responsive in the ESTIMATION SAMPLE…
The court held that plaintiffs were not entitled to these documents. Quoting the Southern District of New York’s decision in Kaye v. New York City Health & Hosps. Corp., No. 18-CV-12137 (JPO)(JLC), 2020 WL 283702, at *1, U.S. Magistrate Judge Marcia Henry wrote that a party seeking “discovery on discovery” “‘must provide an adequate factual basis’ to justify the discovery, and the Court must closely scrutinize the request ‘in light of the danger of extending the already costly and time-consuming discovery process[.]’” The court concluded that the request for an agreement to inspect documents marked non-responsive was “wholly unsupported by the law.”
The decision also noted that plaintiffs would have recourse in the event they later found deficiencies in defendant’s document production. “If Plaintiffs later demonstrate specific deficiencies in Exactech’s production as a result of its improper application of the TAR protocol, they may raise the issue with the Court,” the court noted.
This decision shows us that courts are not willing to place more burden on matters utilizing technology assisted review (besides the accepted validation requirements) than matters using more traditional methods like search terms. Absent a showing of other deficiencies, if it would not be appropriate to share non-responsive documents in a case utilizing search terms as a retrieval methodology, it stands that it would also not be proper to do so in a case utilizing TAR as a retrieval methodology.
Setting the Tone with Cooperative eDiscovery
Most litigators have been involved in contentious discovery, where volatile conferences and sharply-worded emails are commonplace and often lead to motion practice and appearance before a frustrated judge.
In a recent article for EDRM, retired Judge Ralph Artigliere, formerly of Florida’s Tenth Judicial Circuit, wrote that cooperative eDiscovery sets the tone for a successful case. “Too often, settlements falter not on the merits, but because adversarial eDiscovery practices strain relationships and erode credibility,” he wrote.
Artigliere noted that effective discovery negotiation can be learned, and provided tips for making the process work. These include thorough preparation, starting out with low-stakes topics to build trust, and, if necessary, changing negotiators to reset the tone if things become heated.
In the current eDiscovery environment, Artigliere continued, competence in both technology and negotiation is key. “[I]n today’s data-driven world, where individuals and organizations generate vast volumes of information in countless formats and locations, collaboration is no longer just a good idea—it’s essential,” he wrote.
Other recent eDiscovery news and headlines:
- King & Spalding E-Discovery Director Jumps to Nebraska Women-Owned Firm (Law.com)
- OpenAI Bid to Centralize IP Suits Follows Discovery Setbacks (Bloomberg Law)
- OpenAI Must Hand Over Execs’ Social Media DMs in Copyright Suits (Bloomberg Law)
Julia Helmer; Director, Client Solutions
With 15 years of expertise, Julia excels at optimizing enterprise eDiscovery workflows from start to finish. With a deep understanding of how to seamlessly integrate workflows across various eDiscovery platforms, Julia creates tailored solutions for data identification, legal holds, ESI collections, and productions. By harnessing the power of Technology Assisted Review and Analytics, she delivers efficient, cost-effective results that align with best practices and budgetary constraints. Julia’s exceptional communication and customer service skills have fostered strong, lasting relationships with both clients and Project Management teams, enabling her to effectively problem-solve and drive success across numerous projects.
