to bring you the topics and trends you need to know. This week’s post covers the period of December 15-20. Here’s what’s happening.
eDiscovery Pros Anticipate Growth in Next Six Months
The Fall 2024 edition of the quarterly eDiscovery Business Confidence Survey reflects confidence in the industry, while recognizing challenges in the proliferation and complexity of data. According to Complex Discovery, the thirty-sixth edition of the longitudinal study of eDiscovery dating back to 2016 received responses from 61 eDiscovery professionals. From these respondents, more than 57% expect higher revenues over the next six months, while only around 7% anticipate lower profits.
Reflecting other data on the adoption of generative artificial intelligence, the overwhelming majority appear to be in some phase of consideration or adoption of GenAI. Around 40% reported active implementation of GenAI, 26% stated that they were testing or piloting AI solutions, and 28% are evaluating the potential of GenAI technologies. The potential barriers to GenAI adoption include concerns about accuracy, high costs, and regulatory compliance.
As to the industry in general, nearly a quarter of respondents cited the increasing complexity of data as the primary challenge, while around 21% stated that the most pressing issue is data volume.
Pre-Complaint Discovery Granted for Data Trail on Claimed Breach of Hospital’s Privacy Duty
A Pennsylvania county court recently granted pre-complaint discovery to a hospital employee seeking information about alleged distribution of her confidential medical information to other employees.
The Court of Common Pleas of Lackawanna County ordered Jefferson/Lehigh Valley Hospital and related potential defendants to turn over information including the electronic audit trail from the hospital’s treatment records. The potential plaintiff, identified as “S.S.,” alleged that after she was treated by the hospital “as a result of a crisis,” she was asked about details from her confidential records by co-workers. She claims that the hospital did not put in place adequate safeguards to prevent non-clinical personnel from accessing information they did not need to access, in violation of privacy rights and the hospital’s representations about privacy.
Under 23 Pa. Code r. 4003.8, “A plaintiff may obtain pre-complaint discovery where the information sought is material and necessary to the filing of the complaint and the discovery will not cause unreasonable annoyance, embarrassment, oppression, burden or expense to any person or party.”
In order to allow plaintiff to identify potential actors and the scope of the claimed breach, the court granted the request to provide the audit trail, as well as to identify “appropriate entities to be named as defendants,” names and contact information about current and former employees involved in the breach, and copies of internal policies and regulations advising employes of patient privacy. The court denied the request for other information sought, such as the location of computers used to access S.S.’s information and a deposition of someone from the hospital information technology department.
A number of states permit pre-suit discovery to obtain information prior to litigation. Federal Rule of Civil Procedure 27 permits depositions to perpetuate testimony “about any matter cognizable in a United States court” but the federal rules do not contain a provision regarding pre-complaint discovery generally.
In jurisdictions where rules exist on pre-complaint discovery, they can be a valuable tool to obtain limited information, including electronic records where applicable, in advance of formally filing a complaint. If the complaint is filed, this early information could also provide an opportunity to better plan for eDiscovery needs for the matter and allow parties to engage with an eDiscovery partner at the outset of the case.
‘Tis the Season for CLE
It’s that time of year again. For attorneys in states on a calendar-year CLE compliance schedule, December often means catching up on those continuing education hours, listening to CLEs while baking holiday cookies and during those drives over the river and through the woods to Grandmother’s house. This year, make sure to check if you are in a state with mandatory tech CLE.
Of course, the requirement to be competent in technologies including eDiscovery is nothing new. In 2012, six years after provisions for electronically-stored information of Federal Rule of Civil Procedure 26 were significantly expanded, the American Bar Association amended the comments to Model Rule of Professional Conduct 1.1 to clarify that the requirement for attorney competence extends to the use of technology in practice. According to LawNext, 40 states have adopted this comment. New Jersey may be the next, with a proposal currently pending.
Most states, however, do not require technology-specific CLE even though a duty of tech competence is part of their rules. According to CLE provider Lawline, Florida, North Carolina, and the U.S. Virgin Islands formally require CLE hours in tech, while New York has a requirement for cybersecurity, privacy, and data protection. California is the most recent state to adopt a technology requirement. Effective January 2025, the state is requiring one unit of CLE on technology in the practice of law. The New Jersey proposal also contains a one-hour tech CLE requirement.
Even for attorneys in states that do not require CLE on technology, consider the end-of-year CLE rush a good time to expand your knowledge on effective use of eDiscovery technology. And wherever you are, we wish you all the best for a happy and enlightening holiday season!
Other recent eDiscovery news and headlines:
- Rise in Popularity of AI Transcription Services Brings Litigation and Disclosure Risks (Perkins Coie blog)
- Amazon Flex Drivers Must Hand Over Some Documents in Wage Case (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.
