United States: Kramer Levin E-Discovery Update: 2015 — A Year In Review

As 2015 draws to a close, the following is a brief overview of some recent developments in electronic discovery jurisprudence and the rules governing discovery generally, which will impact litigation in 2016. These include: federal courts are now guided by the principle of proportionality for defining the scope of discovery, a unified spoliation sanctions rule, and greater support in the jurisprudence and the federal rules for technology-assisted review to streamline and affect cost savings in electronically stored information ("ESI") review and production. Furthermore, with the introduction of the "Internet of Things" and the proliferation of social media, the types of evidence relevant to a dispute continue to expand. With all these developments to date (and likely more to come), attorneys should keep up with their e-discovery core competencies.

Amendments to the Federal Rules of Civil Procedure

On December 1, 2015, the proposed amendments to the Federal Rules of Civil Procedure (the "Rules") went into effect. By order of the Supreme Court of the United States, these amendments govern in all proceedings in civil cases commenced on or after December 1, as well as in all pending proceedings "insofar as just and practicable." Some of the most anticipated and highly publicized changes include those to Rule 26(b)(1), which now defines the scope of discovery as "any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case" and sets out six factors for determining proportionality, as well as amendments to Rule 37(e), which codifies the remedies available for negligent and intentional spoliation of ESI.

Other amendments to the Rules include:

• Abbreviated time to serve a complaint after filing.
• An emphasis on preservation, including consideration of preservation efforts at the Rule 26(f) meet-and-confer and the Rule 16 conference.
• Allowing for service of Rule 34 production requests prior to a Rule 26(f) conference and changes to the form and substance of Rule 34 responses and objections, including requiring an explicit representation that a party is withholding documents based on an objection or objections.
• The codification of cost-shifting availability.
• A theme across the amendments – as detailed in the amendments' comments – that encourages cooperation among parties and early case assessment and management.

Proportionality Also Emphasized by New York Commercial Division

Also of note, as of December 1, 2015, the New York Commercial Division amended its preamble to emphasize proportionality's import as well, noting:

(emphasis added). This is consistent with the Commercial Division's rules and emphasis on proportionality in electronic discovery management and production. See Commercial Division Rules 8 & 9. Proportionality (and factors going thereto) is also included in the non-party discovery guidelines of the Uniform Rules for the New York State Trial Courts, and it is an issue about which attorneys are expected to be well-versed at a Section 202.12 preliminary conference.

For more information on the amendments to the Rules, see: "Proportionality: The (Not So) New Kid on the Block"

Comments to the FRCP Amendments Support Use of Technology-Assisted Review

Technology-assisted review ("TAR") - whether encompassing the more-common search term or metadata filter or developing analytics and other predictive coding software - continues to be robustly discussed by practitioners and courts alike. In early 2015, Southern District of New York Magistrate Judge Andrew Peck issued a decision in Rio Tinto v. Vale, affirming the use of advanced document review software over more common keyword searches or linear review by human reviewers. 306 F.R.D. 125 (S.D.N.Y. 2015).

The amended commentary to Rule 26 offers further support for TAR in appropriate situations:

(emphasis added). As vendors continue to trumpet the efficacy and accuracy of their analytics software, it remains to be seen whether other courts will join Magistrate Judge Peck in affirming the use of predictive coding or be called upon to resolve disputes between parties on its use or implementation. Either way, the above-noted Rules' commentary may provide additional support for its use in cases with large amounts of ESI and potentially expensive linear review and production processes. The increased focus on discovery proportionality may further bolster predictive coding's use in 2016 and beyond.

For more information on TAR generally and predicative coding specifically see: "Federal Court Reaffirms Approval of Technology-Assisted Document Review"

Continued Development in the Jurisprudence Regarding Use of Social Media in Litigation

With the proliferation of social media, its uses in litigation - both procedurally and substantively - have increased. As such, courts have continued to address the preservation and spoliation of social media evidence. A recent example is the decision in Congregation Rabbinical College of Tartikov, Inc. v. Village of Pomona, a zoning and land-use dispute with claims arising under the First and Fourteenth Amendments and lodged in the Southern District of New York, in which the court affirmed a party's obligation to preserve social media posts and related evidence when subject to a litigation hold. 2015 WL 5729783, __ F. Supp. 3d __, at *16-21 (S.D.N.Y. Sept. 29, 2015). The court held that a village trustee's posts to social media and related messages should have been preserved, but were intentionally destroyed "with a culpable state of mind" and, as a result, relevance could be presumed. Even without the presumption, the court held that the content of the Facebook post and related messages were "plainly relevant" and that "Facebook posts are regularly produced in litigation as evidence of a party's thoughts and actions." The court imposed as a sanction on defendants an adverse inference instruction and attorneys' fees and costs incurred in connection with the motion, but declined plaintiffs' request for a terminating sanction.

Similarly, courts continue to address how relevant social media evidence may be used in adjudicating a matter, including its proper authentication. In US v. Barnes, a criminal defendant argued that certain Facebook messages attributed to him at trial were introduced into evidence without sufficient authentication. 803 F.3d 209, 217 (5th Cir. 2015). The Fifth Circuit Court of Appeals held that the government-witness's testimony that she saw defendant use the Facebook website, recognized his account, and that the website messages matched his manner of communication, were sufficient foundation to authenticate the social media evidence. The court noted that although the witness was not certain that the defendant had authored the messages, conclusive proof of authenticity is not required for the admission of disputed evidence and the jury had the responsibility for evaluating the evidence's reliability. Few courts have addressed the proper methods for authenticating social media evidence. Barnes provides some guidance in that still-developing landscape.

As the legal sphere adapts to challenges posed by multiple social media platforms, lawyers should be aware of and think ahead about the role this evidence might play in all potential litigation phases.

For more information about using social media in litigation, see: "Social Media: What Every Litigator Needs to Know"

Ethical E-Discovery - Kramer Levin Reports on California Bar Association Opinion and Other Developments in Ethical Obligations and Core Competencies for Lawyers

Guidance has continued to emanate from state bar and ethics committees on lawyers' ethical obligations and core competencies in dealing with client ESI in the discovery context, as well as more generally, as a result of increased awareness of cybersecurity threats.

In June, the State Bar of California issued an opinion outlining an attorney's ethical duties in the handling of e-discovery, and enumerated nine specific tasks that all lawyers conducting e-discovery should be able to perform. The enumerated competencies require skill related to dealing with ESI. Similarly, technology skills were also highlighted in the recently added Comment to Rule 1.1 of the New York Rules of Professional Conduct ("RPC"). While there is no present disciplinary record on these topics in New York, there is ample basis to discern a framework of core competencies regarding electronic discovery that New York lawyers should possess - derived from the ethics and court rules and sanctions and other e-discovery decisions issued from local and federal courts within the state - on which discipline might be imposed on competence grounds pursuant to RPC 1.1.

Technology's increasing role in shaping lawyers' ethical duties and core competencies can be seen also in the need to protect client confidences and confidential information against cyberthreats. The American Bar Association ("ABA") published a report and resolution on cybersecurity to encourage "all private and public sector organizations to develop, implement, and maintain an appropriate security program," which encouraged regular assessments of cyberthreats, implementation of appropriate security controls and the development of a response plan. ABA, Cybersecurity Legal Task Force Section of Science & Technology Law, Report and Resolution 109, August 2014. The resolution provided guidance and standards for organizations to employ when developing cybersecurity programs. The report looked to the Model Rules of Professional Conduct, including the duties of competence and confidentiality, as one of the underpinnings for its suggested frameworks, actions and programs. In August 2015, the ABA issued a related Report and Resolution 116, in which it urged increased funding for cybersecurity programs for the judiciary "to counter threats and protect information systems from cyber intrusions or data breaches." In this recent report, the ABA reiterated its concerns that underpinned Report and Resolution 109, and restated the need for standards, programs and frameworks that comply with "applicable ethical and legal obligations and [are] tailored to the nature and scope of the organization, and the data and systems to be protected."

Technology will only continue to advance and increase lawyers' professional obligations.

For more on the ethical e-discovery core competencies for New York lawyers, see: "Ethical E-Discovery: Core Competencies for New York Lawyers"

For more on the ethical e-discovery core competencies generally, see: "Ethical E-Discovery: What Every Lawyer Needs to Know" and "Ethical E-Discovery: Ethics and Interdependence in an Ever-Changing Field"

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.