Digital White Papers

34 WWW.ILTANET.ORG | ILTA WHITE PAPER LITIGATION AND PRACTICE SUPPORT 2015 Revisions to the Federal Rules of Civil Procedure: What They Mean to Us One Year Later Develop a checklist of meet and confer topics for aorneys who will negotiate ediscovery issues and subsequently dra the ESI protocol. The checklist should cover various ediscovery issues, including technical aspects, that should help proactively define the scope of discovery early in the case. This should aid in avoiding proportionality challenges to overall scope and the aforementioned production format. In addition, the meet and confer checklist can also address topics such as sampling and staging of production. The ediscovery team is also well-situated to assist with cost-shiing proposals. When seeking to shi costs of discovery, courts are looking for specific information from the parties, not vague references to burden and expense. Both AMEC Env't & Infrastructure v. Integral Consulting, No. 12- CV-01735, 2014 WL 6601960 (N.D. Cal. Nov. 19, 2014) and Elkharwily v. Franciscan Health Sys. 2016 U.S. Dist. LEXIS 99795 (W.D. Wash. July 29, 2016) discuss the expectation that communication, cooperation and transparency are expected. While the meet and confer process (and associated documentation of the discussion) can help document the communication and cooperation efforts in negotiating scope, the ediscovery expert can also help with preparing, or obtaining, actual cost estimates to demonstrate the cost burden to the court. An ediscovery professional can also further support a burden argument by providing information related to the time required to fulfill a discovery request. Of course, no proportionality discussion is complete without mentioning the use of the right technologies to manage overall costs of discovery, both domestically and abroad. Technology-assisted review (TAR) has continued to gain approval, with courts addressing or approving TAR in England (Pyrrho Inv. Ltd. v. MWB Prop. Ltd., [2016] EWHC (Ch.) 256 (Eng.)), Ireland (Irish Bank Resolution Corp. v. Quinn) and Australia (Money Max v. QBE Ins. Group, [2016] FCAFC 148 (7 November 2016) 204 (Austl.)). As ediscovery experts, we likely agree with Judge Peck's statement in Hyles v. New York City, 2016 U.S. Dist. LEXIS 100390 (S.D.N.Y. Aug. 1, 2016): "In general, TAR is cheaper, more efficient and superior to keyword searching." The ediscovery technologist must develop her expertise with all forms of TAR and their application and be able to educate aorneys on the benefits of employing TAR to assist with managing the review costs of ESI. To highlight your expertise, become familiar with continuous active learning (CAL) and how it eases the use of predictive coding, and explore the use of TAR to analyze received productions. Related to the use of TAR is understanding how to leverage ediscovery analytics tools to provide legal teams with metrics that can be used to negotiate search terms, analyze a document set, quantify associated review costs and more. Gardner v. Continental Cas. Co., 2016 U.S. Dist. LEXIS (D. Conn. Jan. 13, 2016) is an example of a case where parties were ordered to meet and confer regarding their approach to refining search terms used to identify documents for review and to report on their negotiations to the court in writing. Using various analysis tools, the ediscovery technologist can support the legal team by arranging for a statistically valid sample to be reviewed and then by analyzing the responsive rate of search terms. Such an analysis allows the legal team to negotiate search terms in a more informed manner, with actual data to support the negotiations. The Benefits of Change These are just a few cases that illustrate the effect of the FRCP revisions on electronic discovery and what those changes mean to those of us who routinely manage ediscovery and seek to best support the legal team in defense of our clients. With fast-paced changes in technology and the continued explosion in the growth of data, it is essential we understand changes in the FRCP and the benefits and challenges these changes bring to discovery processes. ILTA JOAN WASHBURN Joan Washburn is the Director of Litigation and eDiscovery Services for Holland & Knight LLP. Her primary responsibilities include leading the firm's efforts to develop and implement strategies and new technology for the management of complex controversy matters, with a specific emphasis on ediscovery, managed document review, risk and case management, and defined strategies for the management of big data. Joan aims to ensure the firm is using litigation technologies to add value to the organization and its clients. She speaks frequently on topics related to ediscovery and case management and leads a team of professionals who, through a comprehensive career development path and mentoring, are highly effective agents of change. Contact Joan at joan.washburn@hklaw.com.

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