While 2015 will likely be remembered as the year the Federal Rules of Civil Procedure were substantively overhauled to resolve many persistent issues related to e-discovery, 2016 quietly marks ten years since the Federal Rules were amended to expressly recognize, for the first time, that electronically stored information (ESI) was equally as discoverable as its paper counterpart. In 2006, it is unlikely that anyone could have predicted the exponential growth of e-discovery as a litigation niche or the game-changing impact it would have on civil litigation. What will 2016 bring to e-discovery? Here’s some predictions…and a few hopes:
- As record retention policies continue to lag behind the generation of data, garden variety commercial cases, not just the bet-the-company matters, will involve data sets that are measured in terabytes.
- With burgeoning collections, use of Technology Assisted Review (TAR) will become the default for first round document review, leaving contract attorneys out in the cold.
- Following the amendments to the Federal Rules and the publicity surrounding the opinion of the State Bar of California Standing Committee on Professional Responsibility, attorneys everywhere—from solos to big firms to in-house counsel—will (hopefully!) begin to treat their duty of technological competence with the seriousness it warrants.
- The parties’ planning conference required by Federal Rule 26 will (hopefully!) no longer be treated as a meaningless task to be checked off a list, but utilized to its fullest by attorneys who recognize that it provides a valuable opportunity to negotiate a road map for the entire discovery process.
- Companies and their attorneys alike will (hopefully!) recognize that e-discovery compliance starts with sound information governance, including a thoughtful record retention policy that provides for regularly scheduled destruction of extraneous data as well as protocols to suspend those provisions in the even a litigation hold is issued.
- Savvy companies moving to the cloud will demand that cloud providers integrate e-discovery functionality into their platforms or, at least, provide contractual mechanisms for compliance with discovery requests or subpoenas.
- The Internet of Things will continue to expand and will become the next battle ground for data collection disputes.
- The impact of the European Union’s stringent data privacy rules will be felt more widely as the marketplace continues to globalize and U.S. entities doing business abroad struggle to deal with the complexities of cross border e-discovery.
Although nothing is certain, it seems a safe bet that 2016 will be an interesting year in e-discovery as litigants, counsel and the courts all grapple with the impact of the new rules and the continual march of technology.