3 Lessons on Ediscovery from the 2014 AAJ Convention

Everlaw's table outside the ediscovery CLE session

We were thrilled to sponsor the ediscovery CLE session at the American Association for Justice’s 2014 AAJ Annual Convention.  Beyond the opportunity to show off Everlaw (and our amazing water bottles), it gave me a unique window into the concerns of some of the most demanding ediscovery users: the plaintiffs’ bar.  It was a standing-room-only event that yielded many lessons, a few of which I’ll try to summarize here.

1. Predictive coding is not yet truly useful for the plaintiffs’ bar.

Srivatsa Gupta of Neblett, Beard & Arsenault gave an illuminating talk on the ins-and-outs of predictive coding from the plaintiff’s’ perspective.  What was most notable, however, was the focus on negotiating, analyzing, and sometimes challenging the defense’s use of predictive coding.  It suggested to me that the plaintiffs’ bar is still in a reactive mode here, and hasn’t yet fully embraced predictive coding to augment their own review of the documents.  Indeed—and I’m not sure if this is a symptom or a cause—the predictive coding tools I’ve seen all adopt the defense perspective, focusing on responsiveness and privilege review.  In any case, it’s a shame that plaintiffs’ attorneys’ are so underserved here.

2. Social media can be a huge liability in litigation.

Kelly Twigger of ESI Attorneys spoke with great eloquence about the need to act quickly and decisively when it comes to your client’s social media presence.  Seemingly-innocuous social activity can torpedo your case, including improper preservation of past tweets, status updates, and blog posts.  Personally, I was struck by the disconnect between the scope of this threat and the level of attention it gets in ediscovery discourse.  Do we have our heads in the sand when it comes to social media and ediscovery?

3. As a plaintiff, there are very few reasons not to request a native production.

Matthew J. McCauley of Parker Waichman rounded out the afternoon with a grounded, authoritative discussion about ediscovery protocols.  Among the many tips he imparted on the rapt audience, I was particularly pleased to hear him recommend requesting native productions from defense counsel.  As he said, today’s technology makes handling native productions both affordable and effective; there simply is no reason not to prefer natives.

Given the talent on stage, I was lucky to snag a spot standing in the back for this event.  I think everyone there came away a little wiser and a little more prepared to re-enter the ediscovery fray.  Thanks to all of the speakers, moderator Neil D. Overholtz, and the AAJ for putting it all together!

Packed room at the Everlaw-sponsored ediscovery CLE session