On December 5, 2014, Gibbons hosted its Eighth Annual E-Discovery Conference. The day’s first session discussed the year’s significant developments and featured panelists Michael Arkfeld, Principal at Arkfeld & Associates, and two Gibbons E-Discovery Task Force members; Director Jennifer Hradil and Associate Michael Landis.
The panel first addressed attorney competency regarding technology and the potential ethical implications of a failure to use and understand technological advances. Of particular focus was the State Bar of California’s ethics opinion addressing “an attorney’s ethical duties in the handling of discovery of electronically stored information.” Although an attorney’s technological competency is not a new topic, the panel discussed the shift in focus from not just the benefits of using technology, but also the potential negative effects (such as violations of ethics rules) of an attorney’s failure to keep current on the latest technological developments.
The panel next discussed the trend of district courts using local rules and model orders to encourage and, in some cases, order litigants to address e-discovery issues early in litigation. (See, for example, the model agreement regarding discovery of ESI from the Western District of Washington.) The goal of such measures is to reduce the number of discovery disputes, thereby saving the court and the parties time and money. The panel observed that because the results have thus far been positive, district courts will very likely continue developing and implementing local rules and model orders specifically pertaining to e-discovery.
The panel also addressed recent developments with regard to predictive coding. Although 2014 was not the breakout year that some were anticipating, there were several significant decisions reinforcing that predictive coding can be an acceptable alternative to traditional linear review. For example, in Federal Housing Finance Agency v. JPMorgan Chase & Co., Inc., Judge Cote in the Southern District of New York reminded the parties that she had previously approved the use of predictive coding in 2012. In addition, two courts addressed the issue of switching to predictive coding midway through a traditional linear review. Interestingly, the courts reached different conclusions. In Bridgestone Americas, Inc. v. IBM Corp., the court allowed Bridgestone to use predictive coding, whereas in Progressive Casualty Insurance Co. v. Delaney, the court did not grant Progressive’s request to use predictive coding. One of the primary reasons for the difference was Bridgestone’s willingness to cooperate with its adversary when developing and implementing the review.
The panel concluded with an enlightening presentation by Mr. Arkfeld on the so-called “Internet of Things.” Using a hypothetical scenario, Mr. Arkfeld showed how the growing number of interconnected and online devices are generating ever-increasing amounts of data that can be used in litigation. For example, with the help of sophisticated data analytics tools, parties are able to mine this information for key facts, which can then be used to piece together the elements of a cause of action or defense. This theme was picked up and elaborated upon by the panels throughout the day, showing just how significant these developments are poised to become. 2014 was another busy year for e-discovery and 2015 is expected to be no different.