Perhaps the best snapshot of the state of e-discovery in the U.S. is the annual Electronic Discovery and Information Law Update from the law firm Gibson Dunn. For several years in a row, the headline of the update centered on sanctions, as I’ve noted here before. Then, for the 2012 year-end report, the rise of predictive coding edged out sanctions as the update’s lead.
Now, Gibson Dunn is out with its year-end update for 2013, and the big news is the year’s lack of big news. That is not to say that nothing of interest happened in 2013 — plenty did. But it was not a year of blockbuster cases or major legal developments in e-discovery. Rather, it was a year in which companies prescribed themselves some preventive medicine, taking steps to avoid the very kinds of problems that brought on those ginormous sanctions of the past. Here is how the update describes it:
In contrast with prior years, 2013 was notable for the general absence (with at least one exception) of blockbuster cases involving huge sanctions or imposing new e-discovery obligations. Instead, the focus has largely been on companies’ efforts to proactively develop and implement systems and protocols for avoiding the e-discovery pitfalls of the past and on preempting future issues. Much of the action in the e-discovery area, consequently, has been outside of the reported judicial decisions.
In this context, no news is good news. It means that companies better understand their obligations regarding preservation and deletion of data and are developing policies and procedures to ensure adherence to those obligations. At the same time, however, companies are increasingly fed up with the demands and expense of information governance, so much so that the update describes 2013 as having been a turning point.
We believe that companies in the coming year will increase their focus on not only complying with e-discovery obligations, but also on doing so in a manner that controls the enormous costs that can be involved. In part, they will seek to achieve this through the use of new technologies and more efficient workflows, such as through the use of predictive coding and other data analytics, and in part by seeking reform of a still-flawed system, such as through the proposed amendments to the federal rules.
TAR Adoption Slow
However, one area where the lack of big news was not good news involves attorneys’ adoption of advanced technologies — particularly predictive coding and other forms of technology-assisted review. Whereas predictive coding was last year’s update’s big story, this year’s update says “precious little” happened with predictive coding in 2013. Indeed, good old-fashioned manual review and keyword searching remain the methodologies used in the vast majority of cases, Gibson Dunn reports.
One reason there was so little predictive coding news last year, suggests the update, may be that there were fewer disputes about using it. Given that predictive coding offers advantages for both sides to a dispute, it may be that it is “being quietly agreed to by the parties without any fanfare.”
Another reason may be the legal profession’s notoriously slow adoption of new technology:
Although predictive coding and other forms of computer assisted review–e.g., various forms of data analytics–have received a lot of attention within the “bubble” of the e-discovery community, awareness outside of it still appears to be quite limited, and growing at what can seem like a very slow pace. Changing the habits of attorneys accustomed to having used (for two or more decades, in some cases) an established process built around the use of search terms is turning out to be slow going.
One final reason may simply be that lawyers like doing e-discovery the way they’re used to doing it. “Clearly, another part of the story is that the hype of 2012 is wearing off and the traditional approach of using key words and human review works very well in most cases,” says the update.
Another topic addressed in the Gibson Dunn update is the proposed discovery amendments to the Federal Rules of Civil Procedure. The update provides a summary of key proposals but avoids making any predictions about their outcome. “Most of the written comments submitted to the Rules Committee about the proposed rules have been from self-identified plaintiffs’ lawyers,” the update notes, “very few of whom have expressed support for the amendments.”
Quiet Year for Sanctions
As noted, this year’s update “demoted” the topic of sanctions from its lead story to its last. But there were several sanctions decisions in 2013, the update reports, including one that can fairly be called a “blockbuster” — the nearly $1 million in sanctions that a federal judge imposed on drug maker Pradaxa for “astounding” and “egregious” discovery violations.
The Pradaxa case makes clear that e-discovery errors, left to fester, can swell into large sanctions awards, and seeking forgiveness for missed discovery deadlines may be as costly as the sheer failure to produce at all.
Other sanctions decisions in 2013 were more pedestrian, in a sense, tending to build upon precedent from prior years, the update says.
While 2013 for the most part did not feature the same sort of “blockbuster” sanctions decisions as in prior years, this year’s sanctions opinions reinforce several themes from prior years: Courts are generally addressing e-discovery issues with increased sophistication and nuance, and they expect parties to fulfill all e-discovery responsibilities.
In the end, the year’s lack of any big news may simply reflect our increasing level of comfort with e-discovery and understanding of our obligations, Gibson Dunn suggests. At the same time, the update cautions against complacency.
Based on the relative absence of blockbuster cases in 2013, it appears that many litigants are taking full advantage of the lessons of the past. New challenges have arrived already, however, such as the proliferation of mobile computing devices and increased use of cloud storage. More are certain to come.
In e-discovery, the overarching challenge for practitioners continues to be a legal regime that is “deeply flawed,” the update concludes. While there is no question that reform is needed in the form of amendments to the FRCP, the update says, “it is not at all apparent whether the amendments currently being proposed will achieve their intended effect of fixing a broken system.”