December 1st marked another successful Ediscovery Day celebration full of great educational content for the legal tech industry. Now in its eighth year, Ediscovery day became more focused in its content offerings, with a great lineup of sponsored events.
Read on for highlights!
Judges Roundtable: 10 Best Practices For Maintaining Defensibility Amidst Growing Data Risks
In this webcast, a panel of prominent federal judges offered 10 tips for ediscovery professionals based on recent case law, the FRCP, and emerging data risks affecting ediscovery activities.
The judges speaking on the webinar were:
- Hon. Joy Conti, Sr. US District Judge, W.D. Pennsylvania
- Hon. William Matthewman, US Magistrate Judge, S.D. Florida
- Hon. Charmiane Claxton, US Magistrate Judge, W. Tennessee
The panel agreed that two things that stood out in 2022 were the proliferation of data, both in volume and source type, and the increased competency of attorneys.
Judge Claxton noted that she hadn’t had as many “ediscovery dustups in her district,” in 2022, and that, “Attorneys are more competent, cost-conscious, and open to working together.”
Judge Conti noted the development of the use of technology that came out of the Covid restrictions over the past two years, and that now, she rarely has lawyers in chambers through the use of video meetings. As a separate topic, she also mentioned the increase of ephemeral messaging showing up in discovery, and that attorneys may not be up to date on these new data sources.
Judge Matthewman stated that “Remote technology is here to stay, and lawyers need to step up their game when it comes to presentation both in their speaking and showing of documents and appearance.”
The Judges Panel then offered these ten ediscovery best practices:
- Make sure you read and follow any standing discovery orders from the District Judge or the Magistrate Judge before you file a discovery motion.
- Monitor your client’s compliance with the preservation instructions you provided
- Talk with client custodians and IT professionals on the front end of litigation so that you aren’t surprised by the availability of relevant data.
- Please, please, please seriously consult with opposing counsel and their IT folks on what can and can’t be retrieved before filing a motion to compel ESI.
- Engage in early discussion with opposing counsel regarding the need for an ESI Protocol order, confidentiality order, or FRE 502(d) clawback order.
- If your client or you makes a mistake or inadvertently destroys or fails to preserve ESI, do not try to hide or cover up what happened; rather, promptly advise the other side and the court.
- Be quite cautious of client self-collection of discovery
- Do not help a client play “hide the discovery”
- Don’t irritate the reviewing judge with an indefensibly overbroad request
- Have a good ediscovery checklist, which is updated from time to time, and use it.
2022 Survey Results: The State Of Collaboration Data & Corporate Readiness
ACEDS and Hanzo have partnered for the third consecutive year to survey the market use of collaboration data in ediscovery and litigation, and on Ediscovery Day, they hosted a webinar to share the 2022 collaboration data benchmark results.
The panelists featured:
- Moderator: Michael Quartararo, President, ACEDS and Professional Development
- Dave Ruel, Head of Product, Hanzo
- Lawrence Briggi, Manager e-Discovery Legal Specialist Team, IBM
- Ryan M. Zilm, CEDS, CIP, CRM, IGP, MBA, FAI, Enterprise Records Manager, Motiva
Here are a few of the highlights from that conversation:
How integral have collaboration apps become for business:
Larry Briggi: The platforms are easier to use than email. It’s a big bulletin board. Everyone can add to it. But you also have to be careful because it’s very informal.
Dave Ruel: What we’ve seen this year, especially with startups, is that email has become the secondary way they communicate, with collaboration messaging now the primary communication tool.
Ryan Zilm: Collaboration apps give you instant easy access. You can connect mobile devices so much easier, and communicate and share docs. It’s a fast food mentality, I want it now. On the other side from practitioners, I can easily set a 30-day retention policy on chat, but with email, people have years and years of data saved and don’t want it deleted.
How Do Collaboration Apps Affect Retention Policies:
Ryan: If it’s just IM, it’s easy to set retention policies for a set amount of days. Microsoft has done a good job including this in the current compliance center. It’s easy, just flip a switch. No need to hire someone to design a workflow.
Larry: With a global organization, you’ll often have conflicting retention rules. Yes, it’s easy to set retention policies, but does it match corporate or local policies? And then what about legal hold? The other thing to consider is volume. I have custodians with 8000 Slack channels. I have matters with 86 million messages. How do you manage that and whittle that down for the legal department? So with retention policies, that volume has to be considered.
Dave: With collaboration apps, the mentality of “save everything” has begun to fall away. Now MS Teams and Slack have preserve-in-place capabilities, which definitely helps clients not necessarily have to save everything just to meet preservation requirements.
The conversation with these experts was very insightful and in-depth on the topic, and definitely worth a listen to the entire webinar. For now, here are the key takeaways they left for listeners:
- Collaboration apps aren’t going anywhere anytime soon
- Collaboration apps will most likely become more prevalent than email in the coming years
- Content Sprawl and Volume are the cause of discovery challenges and complexity
- Methodologies for solving these challenges are still being developed
Other Ediscovery Day Webinars Available
I wasn’t able to attend the other two Ediscovery Day webinars, but know they were also filled with outstanding content from speakers made up from a who’s who in ediscovery and legal technology. Be sure to check them out below!
EDRM has just introduced a brand new “Special Masters and Discovery Mediators Bench Book” with participation from many judges and special masters. Join us to learn more about the role of special masters and discovery mediators and how they are helpful to the court, parties in litigation, and the efficient administration of justice. We will provide a link to download the Bench book for attendees.
- Jay Yelton, Counsel, Warner Norcross + Judd
- Dr. Maura Grossman, Professor and E-Discovery Lawyer and Special Master, University of Waterloo
- Hon. Kristen Mix, US Magistrate Judge, D. Colorado
- Hon. Andrew Peck (ret.), Senior Counsel, DLA Piper
On E-Discovery Day 2022, it's only fitting that we look back over the year that's coming to an end and review the most important e-discovery case law rulings of the year. Join Doug, Mary, Tom, and Judge Peck for a lively discussion that will cover the key lessons you need to know for your e-discovery cases in 2023.
- Doug Austin, Founder and Editor, eDiscovery Today
- Mary Mack, CEO and Chief Legal Technologist, EDRM
- Tom O'Connor, Director, Gulf Legal Technology Center
- Hon. Andrew Peck (ret.), Senior Counsel, DLA Piper
Download the 2022 Collaboration Data Benchmarking Report Today!