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The United States: At the Cutting Edge

The United States is a stronghold for ediscovery, especially in connection with litigation. The common law system used requires formal discovery, mandating that parties exchange evidence. In many matters, this can lead to a voluminous amount of documents produced. In order to meet court deadlines and reduce expenses, U.S. legal practitioners must make use of the latest ediscovery technologies.

What is unique about ediscovery in the United States?In December of 2015, the Federal Rules of Civil Procedure were amended with the aim of curtailing the voluminous discovery that has become a hallmark of American litigation, thereby adapting the law to a world where Electronically Stored Information is so prevalent. Among the changes, two rules in particular have caught the attention of practitioners that utilize ediscovery: Rule 26(b)(1) and Rule 37(e).

As practitioners know, Rule 26(b)(1) governs discovery and the type of information that is considered discoverable. In particular, Rule 26(b)(1) removed the familiar “reasonably calculated” language to determine if discovery is relevant. The new version of the rule also contains a new emphasis on the need for proportionality in discovery, and has several factors for courts to consider when determining if a discovery request is “proportional to the needs of a case.”

Can sanctions be issued for misconduct in the discovery process?Generally, the U.S. legal system is set up to allow for sanctions when misconduct occurs. Rule 37(e) pertains to failing to preserve electronic evidence in the litigation process. Under this rule, sanctions for the loss of electronic evidence can only be imposed if a party either failed to take “reasonable steps to preserve” it, or if the electronic evidence was destroyed intentionally. However, a court can infer the necessary intent if the electronic evidence was stored in a reckless manner.

Since the amendments were enacted, there has been a movement by the courts to use the rules to attempt to restrain unnecessary discovery and reduce inconsistencies in case law imposing sanctions that arose prior to the changes. Additionally, courts are

trying to encourage more cooperation between the parties to determine discovery parameters. However, it is uncertain whether these amendments will accomplish their goals to reduce the cost and increase the speed and efficiency of litigation.

What data protection barriers impact ediscovery?Because its data protection laws are very limited, the United States is in a unique position in regards to ediscovery. The legal system allows for broad discovery and creates an environment where large volumes of documents may be subject to discovery. The challenge for practitioners in international litigation matters is to not only adhere to the often strict data protection laws in host countries, but also to adapt to the practices those countries use in order to ensure full compliance with foreign laws and regulations. Practitioners also need to understand that U.S. courts are often unsympathetic to the difficulties of obtaining data from countries with stricter data protection laws. As a result, international document review to narrowly identify relevant documents is increasingly required.

Despite the limited data protection laws in the United States, certain types of information are subjected to greater protection than others. For example, Social Security numbers, birth dates, financial information and other forms of Personally Identifiable Information (PII) must be handled with care in litigation matters. Additionally, the Health Insurance Portability and Accountability Act (HIPAA) regulates the protection given to medical records and other personal health information. For such sensitive types of information, the protection given is high. If the data needed for a case relates to health and medical information, HIPAA mandates consent of the individual for the data being requested. Similarly, the Family Educational

Legal System: Common Law

Applicable Rules: Federal Rules of Civil Procedure 26, 34, and 37

Ediscovery Practices: In a system known for broad discovery, the 2015 amendments to the Federal Rules of Civil Procedure have taken steps to address proportionality and unfettered discovery requests.

At a Glance

NEW FRONTIERS IN EDISCOVERY | 9

Rights and Privacy Act (FERPA), which protects student education records, is another example of data protection law that offers a higher level of protection. Although FERPA is not as strict as HIPAA, practitioners need to be prepared to obtain consent before being able to access this information.

Complementing all of the above are private corporate efforts to secure information. With a focus on data protection, especially from breaches and potential theft of information, individual organisations’ requirements surrounding data security and transfer are increasingly stringent. Apart from or absent specific regulations, contractual agreements and protective orders aim to insure or shore up data protection.

How is technology affecting document review practices?Legal teams in the United States are the world’s leading users of ediscovery technology, and practitioners are relatively quick to take advantage of the new technology to help find the right documents as fast as possible, sort and group documents more efficiently and validate the results prior to production.

In order to manage the large volume of litigation cases and subsequent ediscovery demands, U.S. legal teams utilise a broad spectrum of technology to assist in responding to discovery requests. For example, predictive coding, advanced search and data analytics are all well-proven and highly embraced components of the ediscovery workflow to assist in creating a document review process that is reasonable and proportional to the matter. Any hesitancy to leverage Technology Assisted Review is quickly falling

Balance. It is important for parties to balance discovery requests and responses. Similarly, parties must balance their own data needs with the data protection laws of foreign jurisdictions.

by the wayside in the United States. Meanwhile, the quality of Technology Assisted Review must still be guided by subject matter expert attorneys training and fine-tuning the results from the technology.

What’s ahead in the next era of electronic discovery?The concept of information governance has taken hold in the United States seemingly ahead of other major markets around the world. This year, we have seen companies budgeting for an increasing number of projects, albeit discreet initiatives, to enhance their data management practices. Managing and even centralizing the creation, use and retrieval of information upstream could have an increasing impact on the efficiency, scope and volume of discovery for some. Meanwhile, the volume of information being created and stored continues to increase, and the complexity of rich multi-media files and interconnected data sources will create cumbersome challenges for traditional electronic discovery and scope for new solutions.