This week Doug Austin of eDiscovery Today joined Kelly Twigger to talk about the 2020 Case in Review Report — a joint collaboration between eDiscovery Assistant and eDiscovery Today. As Kelly and Doug discuss, the report is different than the average write up of case law, and talks through what we learned from judicial decisions this year, what we are seeing as trends in the case law not only in number, but as issues in ediscovery. While proportionality, sanctions and failure to produce topped the list, Kelly and Doug discuss other trends we saw and what we expect to see in 2021. Take a listen and then download your copy of the report here.
Kelly Twigger: Good morning, and welcome to our Case of the Week for March 6, 2021. My name is Kelly Twigger. I am the CEO and Founder of eDiscovery Assistant and the Principal at ESI Attorneys. Through a partnership with ACEDs (Association of Certified eDiscovery Specialists), each week we bring to you a video cast where we choose a different case in ediscovery and talk about the practical implications for you, your practice, and your clients.
This week we’re mixing it up a little bit to talk about our 2020 Case in Review Report that we issued last week. In it, eDiscovery Assistant partnered with eDiscovery Today to create an interactive report that’s different from your average case law report. This report shows some trends from 2012-2020. The volume of cases that we’ve covered has just risen exponentially, as well as the issues that are cited in those cases. So think sanctions, proportionality, failure to produce, a lot of the issues that we cover on our weekly case. To talk through the report this week, please welcome my friend, colleague, and our partner, the Editor-in-Chief of eDiscovery Today, Doug Austin. Hi, Doug. Thanks for joining us.
Doug Austin: Thanks for having me again.
Kelly: So you guys know Doug from earlier broadcasts and from his eDiscovery Today blog. Doug blogs daily, many times more than once a day with industry news, case law updates and all kinds of good stuff in ediscovery. Doug has been a consultant and product development director in the ediscovery space for more than a decade and has written, I don’t know, 60 to 70 cases a year for a decade, Doug. Is that right?
Doug: That’s correct. Yes, I’ve written about a lot of case I saw over the years.
Kelly: A lot. So well qualified for us to get into today.
Before we get started, a couple of things to note in the comments on whatever platform you’re watching on, you will see a link to be able to download the report. That link will come from the eDiscovery Assistant website. You’ll put in your email address to download that report. Those will also be shared with eDiscovery Today. Also in the comments, you’ll find a link to the University of Florida eDiscovery Conference. That conference is coming up quickly on March 18, 2021. Please join us. We have over 2,000 registrants now. Doug will be joining us for that conference. What are you talking about, Doug, this year?
Doug: So I’ll be talking about the trends that eDiscovery Today covered in the 2021 State of the Industry Report that we released at the beginning of the year. So 183 people surveyed, 20 thought leader observations. I’ll be covering the highlights of that report.
Kelly: That was a great report. I was really, really privileged to be a part of that one. So thank you so much for including me there. I’ll be talking on a couple of different panels covering case law, because I love case law with Magistrate Judge Gary Jones from the Northern District of Florida and District Judge Xavier Rodriguez from the Western District of Texas and also David Horrigan from Relativity. And then in the afternoon, I’ll be doing a panel on search and using search and reviewing documents, both from your clients and also as you receive them from opposing counsel and how to do that effectively. Those will be some great sessions. We’d love to have you there.
All right, let’s dive in to what we’re covering this week in our 2020 Case in Review Report. I’m going to do my best here. We’re trying out something new today on the Case of the Week and sharing screens. So let’s see if we can get it right. There we go. All right, on the side of the screen, you should be able to see our case law report. Doug, as we’ve talked a little bit, now I just screwed up the sharing. Hold on a second.
Doug: Live TV, what are you going to do?
Kelly: I know, exactly. That happens to me all the time. I told you that was going to happen, Deja. That’s what we said. All right, let’s get back here. So, Doug, as I get the screen sharing back correctly, tell me a little bit, because we partnered with you on this report. This is something that you put out each year on eDiscovery Today and previously on your CloudNine blog. So tell me, what’s the purpose of the report? Why did we get together and do this?
Doug: As you mentioned, for the last 10 years I’ve been doing kind of a case law recap at the beginning of every year, where I take the cases I’ve covered during the year and then I just organize them into categories and various issues related to the case. One of the things that occurred to me this year, and when I thought about doing that again, is that does cover and get into depth 60-70 cases a year, in this case, 40 cases this past year, because eDiscovery Today has only been around since late April. But it occurred to me that eDiscovery Assistant covers so many cases and publishes case decisions for this past year — over 2,800 cases — that it was a real opportunity to have both kind of a forest and trees look at case law. So where we could look at the overall trends for a real large number of cases with the ability then to drill into the specific cases that have not only been covered by eDiscovery Today, but have been covered on the eDiscovery Assistant blog and have been covered here right here on the Case of the Week weekly video. So from my standpoint, I thought it was a great way to give a look at both sides — the broad view of trends and then specific cases and what we can learn from those cases.
Kelly: One of the reasons that we were so interested in partnering with you on it is because it’s really furthering what our goal is at eDiscovery Assistant. What we designed our software to do is to help lawyers be up-to-date on the practical aspects of engaging in electronic discovery. With the Case of the Week series, what we do is really try to kick out and provide takeaways from case law as to what you need to be doing on a day-to-day basis to do ediscovery better. You and I discussed this a little bit yesterday in preparation for today’s session that ediscovery case law, more than any other area of case law, really lends itself towards helping guide lawyers and legal professionals who are supporting the ediscovery process on what they need to be doing to be able to use ESI effectively. There’s so much complexity to it and so much is changing that the case law is of utmost importance. So that’s been our goal. When we put this report together, we talked about making it a more interactive report than kind of the standard, let’s discuss 40 cases in 40 long page descriptions.
So, if you download the report and you take a look at the Table of Contents, you’ll see over here on the right-hand side, the legend. That’s going to describe to you these icons that you’re going to see on each of the cases. What we’ve done is provide a brief description of the cases in categories. So, you can see the categories of the case law on the left side. We’ve got sanctions, 30(b)(6). All of those are the categories. And then the icons that you’ll see are a link to the eDiscovery Today blog, which will have then your write-up, Doug. If the eDiscovery Assistant blog wrote about that case, you’ll have a link to that one, and that will be a write-up from there. And then if we did a Case of the Week video series there, that will take you to the to the video series to be able to watch. Some of those video series are transcribed. Some of them, if they get really long, we don’t transcribe the whole thing, but instead try to give you a summary. The goal of the report really is to give you that information about the case and let you have a deep dive, because Doug and I take different approaches to our analysis of the case, and we thought it would be helpful for you to be able to get as much information as was already out there about that analysis.
Doug: I’ll just add, over the years, I think one of the things that people have come to know me for is writing about case law. And case law, to me, I think, is probably the most relatable teaching tool we have for attorneys. They can relate to reading case law because they’ve had to do it their entire careers. They’ve had to understand cases and so forth. So learning from what happened in these cases, I think, is probably one of our best teaching tools around.
Kelly: I would agree. I totally agree. So let’s talk, Doug, a little bit about some of the trends that we’ve been seeing in case law. We’re looking at Chart 1 in the early stage of the report. What is the impetus behind what we’re seeing in the rise of cases, which has been a lot?
Doug: Well, so one of the things that jumps off the screen right off the bat is you might think because we had a court slowdown last year, that there would be less case law. But in fact, there’s more than ever, as you can see by the 2020 number there, over 2,800 cases covered by eDiscovery Assistant last year. So, Kelly, I know you had some interesting observations as to why we continue to see the overall ediscovery case law rise, the number of decisions. Maybe you can talk about that a little bit.
Kelly: I think if we look at these numbers — so you can see in 2012, 2013, 2014, 2015 — we had the original rules, amendments back in 2006. And eDiscovery Assistant goes way back before 2006 in terms of case law decisions. But when you start to see them, they edge up. So in those early years, we see a couple of hundred decisions in 2006, and then they start edging up 300, 400, and then we get into the 500s in 2012. In 2015, we saw the second set of amendments to the rules related to ESI, and they were big changes. They were big. They were really a rejiggering of Rule 37 as it relates to sanctions and a change in the bar as to how you can get terminating sanctions and a really sort of definitive assessment of what sanctions are available under those various sections of that rule. We also saw an increase in proportionality. So proportionality was brought front and center into Rule 26, and then several other rules were amended to incorporate the proportionality guidance of Rule 26. I think that made a huge difference in the motions that were then brought and the issues being raised.
And we’ll see that in just a minute when we look at the specific issues. But you see, 2016, look at that huge jump from 2015 to 2016. And then pretty similar in 2017, and then it just climbed, 2018, 2019, 2020. And I can tell you that in 2021, we’ve already seen numbers that are going to be close to what we’ve seen in 2020. And it’s early March. So it’s going to be interesting. We’re going to continue to get insights, I think, from how many cases we’re seeing.
Also within the report, you’ll see the maps of the decisions. If you’re an eDiscovery Assistant user, you know that you can use the maps to show your search results at any point in time. What you’ll see here within the report are the maps of the different results. This one is a total of federal and state cases within the application.
I wanted to jump to, and maybe I’m losing my place here on the chart, on the issue tags in the report. And so, Doug, we talked a little bit yesterday as we were getting ready for this about what we’re seeing as far as issue tags in the report. What are you seeing as far as the key issues go here?
Doug: So certainly, while the top issue tag is failure to produce, I mean, that’s really almost like a superset category, if you will. Most ediscovery disputes do have some sort of contention of failure to produce and motions to compel are pretty common. But the next highest category is not sanctions, which you might think is the category where you would normally expect to be at the top, but proportionality. I think that illustrates just how proportionality disputes have blown up with the changes in the rules in 2015. The elevation of the proportionality rule in Rule 26 to 26(b)(1), and so forth.
We’re seeing a lot of instances, and people have been saying, that parties are using proportionality as a weapon on both sides — on the requesting and responding. And so you’re seeing a lot of disputes there. So I think that’s one of the things that’s really notable. In all the years I’ve covered case law, sanctions have always been the top issue that I’ve covered, I think every year except one. Clearly this year, eDiscovery Assistant covered more proportionality cases. eDiscovery Today covered several as well. I think it really shows a need for a better approach to proportionality. More of a systematic approach to operationalizing proportionality assessments and having an approach where the parties can agree on what’s proportional.
One of the big challenges is proportionality is really up to the eye of the beholder. And I think that’s one of the things that has led to a number of disputes. So that to me is one of the things that’s jumped out of me.
Kelly: Just to back up for a minute and explain how we use issue tags in eDiscovery Assistant.
One of the goals when we created the software, and this was for me because I wanted to be able to find what I wanted to find very quickly. And so we built what is a proprietary issue tagging structure for eDiscovery Assistant based on ediscovery issues. What you’re seeing here in Chart 4 in the report are the top issue tags for 2020. The thing about eDiscovery Assistant is you can use these issues to create searches. So for example, while you’re seeing that there were 851 cases in 2020 that included sanctions or sought sanctions, if you took that and combined sanctions with failure to produce, you would narrow that number. So you would have just sanctions cases that dealt with failure to produce. And if you further narrow it to sanctions and failure to produce and mobile device, then you would have cases that were about failure to produce mobile device data that sought sanctions. So, while we’re looking at these top tags and we’ve broken them down by individual issue, oftentimes in doing the research in eDiscovery Assistant you really want to drill into a combination of tags.
So we do a little bit of that in a couple of the categories in the report in terms of criminal and mobile devices is one category and audio video we combined. So that’s really how we use the issue tags in eDiscovery Assistant to be able to show this. And I think a lot of what we do see, though, is you’re starting to see the development of law in a lot of areas we haven’t seen. And if you’re in eDiscovery Assistant and you drill into the maps on individual issues, you can start to see how the case law is developing across jurisdictions on a particular topic. With eDA, we use searches across the country, so you can always sort by jurisdiction. But we start with broad-based searches across the country so that you can get a sense of what other courts are talking about on a particular issue when your jurisdiction has not yet addressed that. There are multiple jurisdictions across the country — the Second Circuit, the Ninth Circuit, Seventh Circuit — that are starting to have large, very well-developed bodies of law in a lot of areas.
But as you branch out into the less popular areas of the country in terms of case law, it’s not as well developed. Courts aren’t seeing the complexity of ediscovery issues. And so we have to look to those other decisions to be able to provide those arguments. Whether or not you’re allowed to cite those cases is up to you and your jurisdiction.
So, Doug, let’s turn a little bit to some of the key cases that we added in the report. What are the cases that you wanted to be able to highlight?
Doug: So certainly there’s a number of cases. I know one of the cases, and I don’t remember which page it’s on, but there was the WeRide Corp. v. Huang, where there was a litany of sanctions. The defendants basically were people who had worked for the plaintiffs, had left and started their own competitive company. These are the cases, it seems, the IP-related type cases that we often see potential for this type of activity and more serious sanctions. But one of the notable things they did is after the case started, after the duty to preserve had begun, the CEO of the defendants said, hey, let’s use this ephemeral message product called DingTalk to communicate. And that was one of the things that District Judge Davila particularly pointed out was the use of that messaging app, where the messages automatically disappear when that was a relevant time period in the case, was part of the reason that Judge Davila issued terminating sanctions.
And we’ve seen two or three cases, notable cases now, where the use of ephemeral messaging has been an issue in the case. Certainly that’s one of the things that I think organizations are having to take a look at. Certainly it’s seen based on the pattern here that that might have been part of their pattern of trying to avoid producing evidence. But for an organization that might be using it in its regular course of business, they may have to make a decision. If litigation hits, what do they do about communicating via a messaging app? Do they continue using an app like that or do they switch — which they may have to consider. That’s why I think a lot of organizations maybe shy away from apps like Snapchat, and DingTalk, and what have you, because of the concern that they could be unintentionally spoliating ESI if litigation hits.
Kelly: I want to point out, too, if you’re looking at this page on the report, you can see from the issue tags that are there that each of the cases in the report have the issue tags that were assigned to it by eDiscovery Assistant. If you look through the sanctions cases, and that’s the section of the report where we have the most decisions listed, you’ll see that there’s a variety of coverage there. So, as Doug was just talking about with the WeRide case, you’ve got your ephemeral messaging and source code. Whereas, we look at these other cases, even the Solis v. United Med. Clinic, P.A. case, EEOC v. M1 5100 Corp. cases, where I’m going to talk about the basis for sanctions is all different. So even though they’re all sanctions cases, the basis for them is all different.
Doug: That’s a great point.
Kelly: What other cases would you highlight, Doug?
Doug: So another one that I thought was notable was the Tate v. City of Chicago [the link in the Case Law Report goes to this eDA article – not the case] case. I believe that’s on page 30. That was notable. This was a case where CBS got a third party subpoena. They were interviewing folks related to the case, and they filed a motion to quash the subpoenas and Magistrate Judge Gilbert granted the motion with regard to notes, documents concerning interviews with plaintiffs or any other communications or correspondence, text messages and so forth, but ordered them to produce all audio and video recordings. So to me, this was a notable case because it elevated the audio video evidence over the other evidence as relevant in the case. And one of the things I think we’ve certainly started to see in 2020, and I believe we’ll continue to see more of, is the emergence of more audio and video ESI evidence in cases like this. We’ve already had more video through surveillance cameras, through mobile devices.
And now we have so many meetings like this one, web meetings that are being recorded. And companies are doing that as opposed to the meetings they used to have in the conference room. They’re recording them because they can. And then later, that’s going to become discoverable evidence organizations are going to have to deal with. So I think it was notable here that Magistrate Judge Gilbert in this case found that evidence so important to the case.
Kelly: And there was one other case that you wanted to cover, Doug, wasn’t there?
Doug: There was. Well, that was Lawson v. Spirit Aerosystems. If there were to be a case of the year, at least in terms of coverage, that would be it for both of us, because there were nine total decisions, four of which I covered on eDiscovery Today. I think you covered the Lawson case twice on Case of the Week if I remember correctly. It is right there, of course. It’s a case that had a bit of everything. It had search term disputes early on. It had the plaintiff requesting TAR, the judge saying there may be some cost to continue with TAR and the plaintiff still wanted to do that. Ultimately wound up having to pay over $750,000 in TAR expenses, and then an additional $94,000 in expenses incurred with the original fee application.
To me, this is the kind of case that illustrates with the issue tags there, Kelly has already pointed out how you can search on multiple issue tags to really zoom in to a particular area you want to look at. It’s also worth noting that this case could have easily been classified in the search terms collection, in the proportionality collection and so forth. So, for purposes of the report, we put cases in certain buckets, but they really apply to multiple issues.
Kelly: Right. And I think that’s really important to realize. And when you’re looking for case law on ediscovery issues, that if you just find TAR cases, you’re going to find cases that can be more about the complexity or the process of how parties are going to engage in TAR. What’s their TAR protocol? And in this particular case, if this is what you’re looking for — how to recover costs associated with TAR — what’s proportional related to that, then you got to dig a little deeper than just that process. Those are excellent cases.
In terms of the cases that I look at for this year to really pay attention to, just above the TAR case is the Livingston v. City of Chicago case. Also in the TAR section, actually, all three of these cases in the TAR section are ones that I would definitely suggest readers to take a look at and understand. The In re Valsartan, Losartan and Irbesartan Prod. Liab. Litig. is actually what we’re going to cover on the Case of the Week next week because it’s such a good case from 2020.
And so the Livingston case, I think, is really important for you to look at. This is where the parties had already agreed to use search terms to define a collection. And once the collection was defined, the other side said, well just give us everything. We’ll give you a clawback order, but just give us everything. And the judge said, no, they’re not required to give you everything. And allowed them to use a protocol to be able to define that. The thing that I found the most interesting about Livingston is that it’s the first time I’ve seen a judge advocate the same position that I take regularly, which is Rule 34 does not require the parties to exchange information about how they’re going to search and provide for responsive documents. The parties can agree as to how they want to do that. And we’re actually going to talk about that in the In re Valsartan case next week, that if you agree, you better think it through clearly as to how things are going to play out in your collection.
So I definitely commend these three decisions in this section. What we’re seeing this year from a practical perspective is that using technology like TAR, computer-assisted learning — however you want to refer to it — it’s becoming a norm. I mean, most of the cloud-based review platforms now have it all built in. It really is and should be one of the first steps that you take to get to the heart of the matter for your clients and to be providing data most expeditiously. And a lot of that means reviewing and producing the most responsive information first. And so to do that, we use TAR. That’s kind of all there is to it. It’s not particularly complicated. We’ve spent some time over the Case of the Week series talking about TAR.
A couple of the other cases that I wanted to just point out to folks. The EEOC case that I mentioned earlier. The reason that I harp on this case a lot, and we’ll actually cover this case on our case law session with the judges in the UF eDiscovery Conference to get their perspective, is that Magistrate Judge Matthewman’s decision here really defines self-collection. Case law has been very clear that lawyers have an obligation to manage their clients’ collection efforts. They have to supervise them. They have to provide guidance to their clients on what should be collected. And in this case, the lawyer did not. The lawyer did not provide any guidance to the client. The client was allowed to go into their data in an employment matter and find what was responsive and provide it to outside counsel. Outside counsel then signed the responses to the requests for production certifying that they had, in fact, provided all responsive data. And the Court looked at that and said, you can’t do unsupervised self-collection. Clients can’t do that. Lawyers have an obligation.
I think that’s very important because we have a hard time articulating in ediscovery what are the lawyer’s obligations in terms of supervision, in terms of knowledge of what they have to be able to do? The eDiscovery Assistant blog post that’s there actually articulates some practical tips on ways that lawyers can engage, and probably our video series. And I know that Doug’s write up on that case was excellent as well. So, dig into that one.
The last case that I wanted to cover was the Bragg v. Sw., Health Sys., Inc. [the link in the Case Law Report goes to this eDA article – not the case] This is a decision from my own District of Colorado, Magistrate Judge Neureiter. And what I think is noteworthy about this decision is that the plaintiff brought a sanctions motion and really had no basis for the sanctions motion. And so what Magistrate Judge Neureiter did was to walk through exactly what is required for a sanctions motion under that section of Rule 37. And he stated that there was zero evidence of any destruction of relevant evidence. And as such, he not only denied the motion for sanctions from the plaintiff, but allowed the defendant to bring a Rule 11 motion for sanctions against the plaintiff for bringing an improper motion. And so therein lies the rub, and that’s what we’re starting to see more of on sanctions decisions across the country in 2020. And we’re also seeing it already in 2021, which we’ve started to talk about on the Case of the Week.
Those are some of the decisions that I would recommend to you. I will tell you, and Doug, you can jump in here. When we looked at picking decisions for each case and the categories that we wanted to cover for this report, when you’ve got more than 2,800 decisions, there’s a lot to choose from. We tried to pick ones that were instructive and differentiated in, say, the sanctions category. You can see already on this page that we’re looking at forensic analysis and source code and mobile devices and adverse inferences.
So what we’ve tried to pick here are a variety of cases that will articulate issues for you. Take a look at them. I don’t think I mentioned, but these links, when you see the case link here, that is a direct link to eDiscovery Assistant. Those links are publicly available. So if you’re not a subscriber, you can still view those links. The links to eDiscovery Today and to the eDiscovery Assistant blog, all of this information is available to non-subscribers. So hopefully that will help you a little bit in some practical aspects of what you need to be doing to prepare and work with your clients on ediscovery.
So, Doug, anything else? I thought maybe I just jump to the end of the report and show the issue tags. While I’ve got that up on the screen, what else did you want to add about the report?
Doug: Well, I think really, just to reiterate what you just said, the report is designed to give you enough information to hopefully tease your interest in reading more about these various cases. As Kelly mentioned, they were selected because we think they’re particularly instructive and I think are great examples that you can learn by, both in terms of things that parties are doing well in many cases, and, because unfortunately, that’s what we have to cover sometimes, things that parties didn’t do so well that we can learn by. So this report is highly interactive in terms of giving you the ability to get enough information about the case to find one that appeals to you. And then you can dive into eDiscovery Today or to eDiscovery Assistant, obviously via the link to look at the actual full case decision. And then if it’s there, the eDiscovery Assistant blog or Case of the Week video. So, plenty of resources to learn more about these cases. That’s really, I think, what we from eDiscovery Today and eDiscovery Assistant try to do, is give you the resources so you can learn as much about these cases and what they can mean to you as possible.
Kelly: Exactly. And just for clarity’s sake, the issue tags here that are on this page 41 of the report, this is not the totality of issue tags that are available in eDiscovery Assistant. But this is the total list of tags that were added to cases that are included in the report. So just for clarity there.
In terms of what’s coming up, we expect to continue to provide this kind of analysis on trends and information. I think, Doug, we kind of talked about it, but maybe we’ll hop on quarterly in the Case of the Week and be able to talk about what trends we’re seeing in 2021 and what kind of key concepts that folks should be paying attention to.
So, again, thank you to you and to eDiscovery Today for allowing us to partner with you on putting out this great resource. We would love to hear from viewers, readers of the report, what your feedback is, what you’d like to see in the next report, what things worked for you, what things didn’t. Our goal is to be able to continue to provide information and practical value for you as you engage in electronic discovery.
Doug: And we already have several interesting cases in 2021. Which will be in next year’s report, and one that’s a real doozey that you covered in back-to-back weeks on Case of the Week. So, yeah, there’s going to be plenty. We do want to hear your feedback. I do want to thank you, eDiscovery Assistant, for partnering with me and for being my sole case law source for the past several years. I appreciate that.
Kelly: You’re welcome, we’re happy to do it.
Doug: We’re continuing to update quarterly.
Kelly: Fantastic. Thanks, Doug. Thanks for joining me this week.
That is our Case of the Week for this week. Thank you so much for joining me. I will be back next week with another case on our Case of the Week. And remember that If you are an ACEDS member and interested in using eDiscovery Assistant, there is a discount available to current members and a trial for folks taking the ACEDS exam. Please drop us an email at aceds@ediscoveryassistant.com, and one of our team will reach out to you. If you have feedback for us on the Case of the Week or on our report, please just drop us an email at support@ediscoveryassistant.com, and we’ll get back in touch with you. That’s it for us. Have a great week. Stay safe and healthy, and we’ll see you next week. Thanks so much.
