eDiscovery case law in the U.S. continues to proliferate and evolve, offering any number of lessons to clients and counsel on how to address and handle ESI during litigation. On January 26, 2022, Phil Favro from Innovative Driven hosted a webinar in which experts from the field—U.S. Magistrate Judge Helen Adams, Ross Gotler, and Vanessa Quaciari—discussed several recent eDiscovery cases and shared insights on the guidance those cases offer regarding key eDiscovery issues.
All of those insights can be viewed on the webinar recording here. However, there are six topics the speakers highlighted during the program that particularly stand out and we have included video excerpts of those items in the following paragraphs.
1. Ephemeral Messaging
Ephemeral messaging is a dynamic form of communication that enables parties to automate the disposition of message content on both the sender’s and recipient’s messaging applications. Mr. Gotler discussed some of the specific challenges surrounding the discovery of relevant data from ephemeral messaging applications and other “post-email discovery” issues with digital-age communication applications.
Structured data—such as information housed in databases—is an increasingly important source of relevant information in discovery. Ms. Quaciari explained that traditional requests and responses under Federal Rule of Civil Procedure 34 may not be sufficient to address the complexities of database discovery and articulated how requesting and responding parties may consider handling discovery issues arising from database discovery
3. Discovery Process
Questions regarding a responding party’s discovery process is one of the more contentious issues involving eDiscovery. According to Judge Adams, whether a court will permit this discovery generally turns on the nature of “harm” the requesting party has suffered. While a strong showing by the requesting party may merit such discovery, Judge Adams and Ms. Quaciari both highlighted that mere production gaps or process errors generally won’t be sufficient to justify “discovery on discovery.”
4. Privilege Logging and Proportionality
While disagreements over privilege logs already abound, the application of Rule 26(b)(1) proportionality principles to privilege logs figures to add another layer of complexity to these disputes. And yet, courts have found that proportionality does apply to privilege logs. Mr. Gotler addressed this recent development, together with practice issues of which requesting parties and responding parties should be aware.
5. Litigation Hold and Preservation Challenges
There have been several cases from the past year that have spotlighted the inability of clients or counsel to implement a litigation hold or otherwise preserve relevant, responsive ESI. While such a trend may seem surprising given the proliferation of education on these topics over many years, Ms. Quaciari and Judge Adams emphasized that enterprises must grapple with various complexities that impact the preservation of digital age communications.
6. Cross-Border Issues / GDPR
Several cases over the past couple of years have involved document requests seeking production of materials that contain overseas personal data protected by the European Union (EU) General Data Protection Regulation (GDPR). Mr. Gotler explored why most GDPR-based objections to those requests have been overruled and why courts generally feel the GDPR does not preclude discovery of relevant personal data from the EU.