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2017 Trends in eDiscovery Legal Standards

2017 Trends in eDiscovery Legal Standards

In 2015, amendments to the Federal Rules of Civil Procedure (FRCP) were established, which led to significant changes in eDiscovery standards last year that continue to evolve in 2017. The result has been that in cases in which discovery of digital data in computers, networks or storage media is a component of either side of a legal case, new eDiscovery procedures are taking root. These procedures greatly benefit from the use of qualified electronic discovery services for the retrieval, preservation and analysis of such data.

Overview

Numerous rulings last year and this year are molding the practical aspects of the FRCP amendments with regard to eDiscovery. The most meaningful changes relate to proportionality, discovery process management, use of innovative technologies and reduced tolerance of legal teams disinclined to add value to the discovery process.

Proportionality

The new standards explicitly state that any electronic discovery is to be “proportional to the needs of the case,” which replaces the previous, more open-ended, language that discovery must be “reasonably calculated to lead to the discovery of admissible evidence.” In other words, in the interests of reducing time and expense, attorneys’ discovery requests are expected to be well-scoped and take into account the amount of damages at stake, each party’s resources and, most importantly, whether the expenses are proportional to the benefits. Parties requesting discovery should expect to incur additional expenses if they are not able to satisfy the judge as to the value of the discovery’s benefits.

Cooperation

The trend in courts has been to reduce their management of the discovery process and leave that to the parties in a case. Thus, a high degree of cooperation is expected between each side in a legal dispute utilizing eDiscovery. For example, they must collaborate on what devices are subject to discovery, the data search terms used and any issue with respect to the technical aspects of the digital discovery process. Naturally, experienced, highly trained eDiscovery engineers are essential to making this effort productive.

Lost or Damaged Data

If a party is unable to comply with an eDiscovery request due to the requested information being lost or damaged, termed “spoliation” in legal terms, the party can avoid sanctions if they can show that they took reasonable steps to prevent the spoliation and had no intent to deprive the adversarial party in the case. Clearly, the latter would be easy to demonstrate if top-notch eDiscovery experts were put on the case who follow strict data recovery and preservation protocols.

Technology Assisted Review

The new FRCP amendments clarify that attorneys are now expected to give preference to technology when reviewing discovered data versus the old practice of manual review. This aspect is primarily satisfied by the use of predictive coding, which is a highly efficient method for culling through huge amounts of retrieved data searching for relevant material. In recent years and continuing in 2017, this technique has increasingly received explicit support from the courts.

Recognition of the Value of Technology in Discovery

The impetus behind the 2015 FRCP amendments and other rulings in international legal systems is the growing recognition of the high value that technology-based, digital discovery brings to legal cases. It reduces costs, saves time and leads to a more efficient resolution process overall in a variety of legal disputes. The use of a highly qualified, experienced eDiscovery service provider is the key to success within this new paradigm.
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