If you attended an e-discovery legal conference recently, you probably noticed a common theme among corporate counsel, litigators and judges: There is an increased focus on bringing the cost of e-discovery into alignment with the stakes of the case.
Many are concerned that the goal of a “just, speedy and inexpensive determination of every action and proceeding,” referenced in FRCP Rule 1, is eroding. There is even talk of changing the Federal Rules of Civil Procedure again to address the issue. While there may be another rule change in the future, change will take time and will require interpretation. After all, many still struggle to interpret and apply the 2006 Electronic Discovery Amendments.
E-discovery has come a long way in a short time. Some firms and service providers keep up while others still deliver e-discovery services in a way that is “so 2010.” But we are talking about more than just efficiency. A failure to use the right people, process and technology can lead to both higher costs and a negative result.
For example, there have been several recent cases dealing with privilege waiver. In these cases, the party inadvertently produced privileged documents and later attempted to claw them back. The test for whether privilege is waived by inadvertent production is located in FRCP 502(b) and turns on whether the producing party took “reasonable steps to prevent disclosure.” In each of the following cases the court held that privilege was waived because counsel could not show it had taken reasonable steps to prevent inadvertent disclosure of the privileged information.
Remember that there is no such thing as “e-discovery in a box.” Processes and technology that were only recently best practices are consistently replaced with even better processes that are more defensible and do a better job of integrating technology. Technology continues to evolve and develop in ways that will impact both the types of e-discovery problems we face and the types of solutions we deploy to solve those problems. Software tools adequate a few years ago are now outdated as new tools and data storage become increasingly complex.
As the challenges and complexity of discovery evolve, it is not enough to rely on vendors, software or processes that may have been sufficient several years ago, but are not up to the task of today’s larger and more complex universe of data.