Mark Sidoti Of Gibbons P.C.: Staying Ahead Of The E-Discovery Learning Curve

Editor: Why did your firm create its E-Discovery Task Force?

Sidoti: Some brief history helps frame this response. The concept of e-discovery and information management as factors that could dictate the outcome of litigation and turn straightforward cases into “bet the company” situations began in the late 1990s, with a few legal opinions focusing on spoliation of data. Several subsequent seminal court decisions – including the Zubulake decisions out of the Southern District of New York in 2003 and 2004 – resulted in litigants being severely sanctioned for problems with their document preservation and production practices and the spoliation, or wrongful loss or destruction, of relevant electronic information. In early 2004, the Sedona Conference, the expert think-tank, developed the Sedona Principles, a set of best practices guidelines for e-discovery and document retention that constitute a template for revamping corporate policies in this area. Finally, the Federal Rules of Civil Procedure were significantly amended as of December 2006 to reflect the courts’ need to deal with e-discovery issues and parties’ obligations to address them.

Gibbons created its E-Discovery Task Force in 2003, before many of these developments and well before many law firms were focused on this now ubiquitous area of the law. At the time, we had two overriding goals: to educate all Gibbons attorneys on issues that we foresaw would predominate litigation and corporate policies in the near future, and to provide our clients with the most up-to-date counsel in this area. I’m proud that Gibbons’ E-Discovery Task Force is now a nationally recognized, interdisciplinary group of attorneys, information technology specialists, and knowledge management professionals who counsel businesses of all sizes in diverse industries in all areas of e-discovery and information governance.

Editor: What should clients be most concerned about right now in the area of electronic discovery?

Sidoti: I think it’s critical that businesses recognize that information governance and e-discovery are modern business realities that aren’t going away, and embrace the vast available knowledge and resources rather than look for temporary workarounds. Generally, the greatest challenges confronting businesses and individuals involve the rapid pace at which everything about electronic discovery is evolving and the vast amount of ever-changing information that clients and their legal advisors have to absorb and then apply. Legal educators, law firms, and the judiciary are scrambling to develop programs to keep pace, which is why we see certification courses, multi-day CLE programs, bench and bar mini-conferences, think tanks and webinars springing up everywhere to address the latest legal issues, rulemaking debates, and technologies.

Often, it feels, lawyers and their clients are searching for solutions to e-discovery problems that take on new and more challenging dimensions long before even the most committed of us can reach a consensus. Indeed, early predictions were that the challenges of preserving, collecting, and evaluating huge volumes of electronic data for litigation, investigation, and audit should have become more manageable with advances in technology and attorney education. Given the ever-expanding role of e-discovery in every facet of litigation, and the exponentially expanding volume of electronic data, these predictions seem almost naïve in retrospect. In short, the challenges are greater than ever.

Editor: What are some of the latest evolutions in this area to deal with these challenges?

Sidoti: One, certainly, is technology-assisted review of electronic data, including one method called predictive coding. This is an area that has garnered much recent attention and will continue to be a hotly debated topic. The controversy centers on the fundamental premise of TAR, which is that it represents a more effective and accurate way of locating the most, and the most responsive, documents from massive data sets. As evidence of how far we’ve come and where we’re headed, the debate has progressed beyond whether it is necessary or appropriate for trained reviewers to conduct a document-by-document, linear review of all documents collected in a data set. Quite simply, it is generally accepted by courts that they do not. Now the discussion is focused on the best combination of human input and technology to discern the greatest number of truly relevant documents in the most efficient and scientifically sound way. That debate will continue as existing technologies are improved and new ones are introduced.

Another hot topic centers around the possibility of additional e-discovery-related changes to the Federal Rules of Civil Procedure. In September of 2011, a specially formed subcommittee of the federal Civil Rules Committee met and considered detailed proposals from individuals and organizations addressing the key concerns of over-preservation, litigation hold triggers, regulation of pre-suit conduct, sanctions standards, and cooperation among litigants. A clear picture emerged that U.S. corporations are needlessly spending millions of dollars on preservation and e-discovery in a wide variety of cases.

Just this past April, the Civil Rules Advisory Committee proposed a slate of Federal Rule amendments that could result in the most significant changes to discovery practice since 2006. The two most discussed proposals relate to a modification of Rule 26(b)’s proportionality element, designed to limit discovery “proportional to the needs of the case” after consideration of a number of factors, including “whether the burden or expense of the proposed discovery outweighs its likely benefit.” The Committee also proposed a change to the current, relatively ineffective and rarely applied Rule 37(e) “safe harbor” relating to imposition of spoliation sanctions. The proposed rule would set a higher standard, requiring a showing of either “willfulness or bad faith,” or that the loss of evidence “irreparably deprived a party of any meaningful opportunity to present claim or defense.” This new rule is intended to and would effectively eliminate negligence of any degree as a basis to impose spoliation sanctions. It is hoped that, collectively, the proposed rule changes would blunt the currently oppressive threat of sanctions litigants face for the loss of even small amounts of marginally relevant data and the tremendous burden of over-preservation to mitigate this risk.

The courts are also becoming increasingly proactive in their efforts to guide litigants through this modern day minefield of rules and obligations. For example, in September 2011, the Advisory Council of the Federal Circuit unanimously adopted a Model Order regarding e-discovery in patent cases, which is designed to serve as a “starting point” for district courts to streamline and reduce e-discovery costs, emphasizing email production limits. Under the Model Order, e-mail discovery must be phased in after initial disclosures and production of basic documentation about patents, prior art, accused devices and financials have progressed. Email document requests must be propounded on specific issues; global requests will not cut it. Among other novel – and some would say, radical – approaches, the Model Order mandates that e-mail discovery requests are required to be specifically limited as to custodians, search terms, and timeframes, with only five custodians and five search terms per custodian per party permitted, absent a showing of distinct need.

One month later, the Judicial Improvements Committee of the Southern District of New York issued a report on the initiation of a Pilot Project Regarding Case Management Techniques for Complex Civil Cases. In designated cases, parties are required to submit, early in the matter, a “protocol and schedule for electronic discovery, including a brief description of any disputes regarding the scope of electronic discovery.” This Joint E-Discovery Submission requires counsel to identify specifically any “unresolved issues,” including those relating to preservation, search and review, source(s) of production, form of production, identification and inadvertent production of privileged material, and cost allocation. The order calls for information on the value of the case and the specific anticipated costs of e-discovery, and even inquires as to “the extent to which the parties have disclosed or have agreed to disclose the dates, contents, and/or recipients of ‘litigation hold’ communications.”

Editor: How do you communicate these critical concerns to your clients?

Sidoti: Early and often!

Gibbons relies not only on its E-Discovery Task Force but on the knowledge imparted to all its attorneys through our internal training and CLE programs to ensure that our clients – especially those active in litigation – get the best and most current counsel regarding their – and their adversary’s – electronic discovery obligations. Our litigation attorneys are well-versed in the relevant rules and case law, as well as our clients’ IT infrastructures and document management policies and procedures. Armed with this knowledge, we strive to take the lead early in cases on e-discovery issues. This helps to position our clients most advantageously, and also presents our firm and our clients in a favorable light with judges and magistrates who are eager to deal with knowledgeable counsel in these areas.

The E-Discovery Task Force also publishes a blog – called the E-Discovery Law Alert (www.ediscoverylawalert.com) – which is a regularly updated, comprehensive online resource offering practical perspectives and topical analysis of the most up-to-the-minute electronic discovery and information management issues. The blog covers recent legal opinions, legislation and other developments in e-discovery and information management, including spoliation, sanctions, social media, privacy, technology-assisted review, cybersecurity, and cross-border discovery.

In addition, each fall, Gibbons hosts an annual full-day E-Discovery Conference, which covers the past year’s judicial, legislative, technological, industry, and related developments. Some of the most respected names in e-discovery, including leading academics, former judges, e-discovery service providers, and representatives from leading corporations, along with members of the Gibbons E-Discovery Task Force, lead a variety of panels addressing new and ongoing critical concerns and issues. At our most recent E-Discovery Conference, which was our sixth annual event, we covered such breaking topics as the new e-discovery ethics obligations for corporate counsel and technology-assisted document review.