Revisions to the Federal Rules of Civil Procedure prompted much discussion at the 12th annual Georgetown Advanced eDiscovery Institute (AEDI) event, held on November 19th and 20th. With the focus on the revisions to the Federal Rules of Civil Procedure (which took effect December 1st of this year), this year’s conference was particularly topical. Many of those involved in the rules’ drafting committees were panelists at AEDI this year, which helped promote useful insight into the intended purposes of the various rule changes. Many of the most recognized eDiscovery legal experts were in attendance.
The panelists included: federal judges, attorneys, litigation support professionals, and published authors. Several experts that attended the conference were kind enough to provide me their thoughts about the AEDI event. This article provides observations and impressions of the AEDI conference, including the following specific remarks made by various industry experts:
Hon. Judge Andrew J. Peck, U.S. Magistrate Judge, U.S. District Court, Southern District of New York
“The discussion of the December 1 rules amendments was a key part of the Georgetown program. And I continue to remind attorneys of the need to have a Federal Rule of Evidence 502(d) order, and that it is akin to malpractice to not use such orders. On another note, I was excited to see that almost the entire audience in the TAR panel raised their hands to indicate that they used TAR in their cases.”
Jason R. Baron, Esq., Of Counsel, Drinker Biddle & Reath, LLP
“As it has done for many years, the Georgetown Advanced E-Discovery Institute’s annual conference brought together many of the nation’s leading e-discovery judges and lawyers for a sophisticated conversation about the most timely and important issues facing litigants. From my perspective, the fact that the conference was taking place on virtually the eve of the December 1, 2015 date for the latest FRCP amendments going into effect certainly contributed to a heightened “buzz” this year. Some of us believe that the amendments to the Rules will faithfully be guided by an iron law of unintended consequences, so the jury will be out for a while on how the rules will be interpreted. But we can all still hope that more explicit recognition of proportional discovery and new limitations on when curative measures are appropriate for the loss of data will together have a salutary effect in keeping preservation and litigation costs down. In the meantime, I intend to continue my efforts to advance the cause of smart information governance in corporate settings, which I believe in the long run holds the key to our best grappling with exponential information inflation in the realms of litigation and compliance.”
Ken Withers, Esq., Deputy Executive Director, The Sedona Conference
“I was pleased to see that several presentations and panels dealt with the “Internet of Things” and the explosion of data and communications through devices that we don’t normally think of as ‘computers,’ such as watches, cars, industrial machines, and medical monitors. I’ve predicted before that the tremendous volume and complexity of data that these devices generate will be the biggest challenge for Information Governance over the next several years, and by extension, for discovery, once the law catches up. I hope we can come up with solutions!”
Craig Ball, Esq., Attorney and Forensic Technologist, Certified Computer Forensic Examiner
“Without doubt, this year’s Georgetown AEDI resonated with discussions of the Civil Rules amendments and whether and how they will impact practice. There seemed to be a growing consensus that the amendments will tend to harmonize the analytical framework for spoliation sanctions, prompt further debate about what proportionality entails and drive discovery inquiring into the elements of proportionality. While there were fresh and interesting tracks, the marquis features of the AEDI, such as the Case Law Update and Judicial Roundtable, stayed strong and benefitted from new and varied voices. Judge Facciola’s moderation of a smaller judges panel was splendid in that it transformed the Roundtable into a relaxed conversation between friends instead of the ponderous serial interrogations of past Institutes. With Ken Withers to start and John Facciola to wrap up, how can you go wrong?”
Aaron Crews, Esq., Senior Associate General Counsel and Global Head of eDiscovery, Walmart
“I would summarize the chief focus of this year’s conference as ‘the changes included in the Amended Federal Rules, and how those changes will impact discovery on a go-forward basis.’ As anticipated, there was a great deal of conversation about the emphasis the amended rules place on proportionality, how that emphasis can and should be applied by courts grappling with day-to-day discovery issues, and what the parties’ respective roles are when fleshing out issues surrounding claims that some aspect of requested discovery is disproportionate to the value of the information sought or the case generally. From my vantage, the conference’s relatively deep dive into how the rules’ emphasis on proportionality should be applied in ‘real life’ underscores the need for and benefits of a focus on ‘core discovery’ at the beginning of cases (i.e., a focus on starting with the most accessible materially relevant information first, and then moving to additional sources, custodians, or issues, as needed, once the information derived from ‘core discovery’ is understood and its impact ascertained). Proportionality demands a focus on discovery which is designed to answer the dispositive and material issues in cases. Fishing expeditions and discovery sought because a ‘party doesn’t know what it doesn’t know’ should generally be deep-sixed by the rule changes.”
Dr. Herbert Roitblat, Senior Data Scientist, Proofpoint
“Probably the most important thing in the AEDI meeting was the discussion of the new rules and their likely impact on the practice of law. Second was consideration of where the field is going over the next several years. The future was a main theme of this years meeting and I think that they did a great job of it. As a field, we have the power to direct where we are headed and this direction requires thoughtful consideration. I think that we achieved a great deal of thoughtful analysis at this meeting.”
Patrick Oot, Esq., Partner, Shook Hardy & Bacon, LLP
“Many of us have supported the 2015 Rules Amendments that were implemented on December 1st. The Georgetown CLE did an excellent job of communicating the changes and how to provide guidance to clients on Rule interpretation. I was also happy to see a packed room for our ethics program and broad participation using the polling tools. Overall a great educational and leadership opportunity.”
Hon. Ronald Hedges (Ret), U.S. Magistrate Judge, U.S. District Court for the District of New Jersey, Principal of Ronald J. Hedges LLC
“There was not one, but a number of ‘most important’ issues discussed at AEDI. At a practical level, number one must be the amendments to the Federal Rules of Civil Procedure although I expect that we will need a year or more to see how effective the amendments are in achieving the goals of ‘cooperation’ and ‘proportionality.’ At the ‘technology’ level, technology-assisted review (or whatever one chooses to call it) loomed large at AEDI. Despite that, I question whether we will see it ‘morphing’ into a search technology for most lawyers and in most civil actions, especially those in State courts.”
Maura R. Grossman, Esq., Of Counsel, Wachtell, Lipton, Rosen & Katz
“The primary focus of this year’s Advanced eDiscovery Institute was on the anticipated impact of the upcoming Federal Rules amendments, and how they will play out in practice. The biggest challenges appear to center around operationalizing the construct of proportionality and determining which party will shoulder the burden of proof on the elements required to obtain (or defend against) remedial measures or sanctions for the spoliation of ESI.
A secondary theme involved anticipating and preparing for future disruptions in the legal industry—or perhaps, more accurately, the potential consequences of failing to do so—as data continues to proliferate at alarming rates, and new technologies emerge and threaten to eviscerate privacy.”
Patrick Burke, Esq., Senior Counsel, Seyfarth Shaw, LLP
“I was interested in the discussions around our shared hope that the new eDiscovery amendments to the Federal Rules will move the needle toward proportionality in discovery. Good to see the judges and thought leaders at the Georgetown Advanced eDiscovery Institute pointing the way.”
John L. Kapp, Manager—Practice Support & eDiscovery, Shearman & Sterling, LLP
“2015 is a year where big changes have taken place and the EDiscovery industry looks to its thought leaders to provide guidance. FRCP changes and the end of Safe Harbor as we know it acknowledge the complexity of the legal and technical aspects of the work being done. The year’s topics do focus on two basic human rights: privacy and access to justice. The fresh look at the mechanisms of moving data around the planet and the consequences of mishandling data has implications far beyond just discovery. The quest for proportionality is based in the need to give access to the benefits of discovery to everyone and not just the parties who can afford the high price tags of years past.
Georgetown AEDI continues to be the pinnacle of thought leadership from the broadest spectrum of the industry. Accessible to all and valuable to all.”
Philip Favro, Esq., Director of Legal Education and Resources, Coalition of Technology Resources for Lawyers (CTRL)
“One of the more striking aspects of the conference was the level of technological knowledge on display by the 16 judges in attendance. These judges represent a growing wave of jurists who understand many of the information security, data privacy, and eDiscovery issues now confronting litigants. A technologically sophisticated bench provides additional motivation for lawyers – particularly those who may be procrastinating the inevitable—to become tech-savvy.”
Ariana Tadler, Esq., Litigation Partner and Chair of E-Discovery Practice Group, Milberg
“Georgetown Law Center’s Advanced eDiscovery Institute continues to offer solid advanced education about the ever-evolving eDiscovery arena. With a principal focus on the new federal discovery rules, the program offered historical context and forecasts as to how the rules will likely play out in practice. Panelists shared their experiences and expectations, and in some instances even used hypotheticals to demonstrate application of the law and techniques to improve legal practice. The program also offered practical education about developments in technology that provide solutions to data management. Yet again, AEDI stood its ground as a top go-to educational provider.”
David Horrigan, Esq., eDiscovery Counsel and Legal Content Director, kCura
“Not surprisingly, with this year’s Georgetown Advanced eDiscovery Institute included a great deal of discussion about the amendments to the Federal Rules of Procedure, given that the annual event was held only a couple of weeks before the Dec. 1, effective date for rules. There was plenty of discussion of Rule 1, Rule 26, and the safe harbor—of lack thereof—in the new Rule 37(e), but as he often does, Judge Facciola gave a great summary of most lawyers’—and clients’—feelings about eDiscovery when he said in one of the Georgetown sessions, ‘I had a root canal last week. It was more fun than eDiscovery.’ It’ll be interesting to see when we convene for Georgetown next year whether the rules have had much effect—allowing eDiscovery to beat out a Facciola root canal as a form of entertainment.”
John Tredennick, C.E.O., Catalyst Repository Systems
“If there was a theme at Georgetown it was around proportionality and the new rules. The question was whether the formal introduction of proportionality would have any impact whatsoever on the growing costs of discovery.”
As indicated in the expert’s quotes from earlier in this article, proportionality was a topic referenced throughout the conference. The discussions about proportionality clarified that the new rules intend to encourage the parties involved in litigation to focus their discussions regarding discovery obligations based on factors germane to the specific litigation at hand. Several experts expressed the concern that, contrary to the new rules intent, the result might be additional motion practice.
Beyond the conversations about the Federal Rules of Civil Procedure, technological advances was another topic prevalent to the conference. I had the honor of introducing the panel event entitled “Search 2020,” which focused on using technology to search to find potentially relevant information. The “Search 2020” panel analyzed a hypothetical scenario, set five years in the future, for the purpose of initiating a discussion of best practices for meeting discovery obligations in a cost-effective and efficient manner.
My concern with the enactment of the new rules is that there will also be an increase in the number of cost-shifting arguments, prompting a need for case law to provide further guidance and clarification. It may take some time to determine the extent that the courts are willing to expand upon the principle of proportionality, since this concept was already an existing part of the focus under the Federal Rules of Civil Procedure. Similar to the time following the prior revisions to the Federal Rules, 2016 promises to be like 2006 all over again.