We’re all aware of the ways in which rapidly-evolving technology is fueling change in legal evidence, including what’s considered relevant and how it’s reviewed.
What’s slightly less obvious—but by no means less important—are the ways in which the judiciary pushes the boundaries here, sometimes in response to technological trends, and sometimes in advance of them.
Zubulake v. UBS Warburg & The Ediscovery Industry
To begin with the most prominent example, last year marked the ten year anniversary of Zubulake v. UBS Warburg, a case that laid the groundwork for today’s billion dollar ediscovery industry. Judge Scheindlin’s opinions on the discovery issues in that case—and the ones that followed—covered everything from how parties preserve electronic evidence to the consequences for spoliation of that evidence. Many consider this the beginning of the electronic discovery era.
Increase in ESI Leads to More Ediscovery
Since then, we’ve only seen an increase in the volume of electronically stored information (ESI). For instance, with the proliferation of free email services like Gmail, Yahoo!, and Outlook, we generate more emails than ever before. The Zubulake case involved only a couple hundred emails, but the average number of business emails sent and received per account in 2014 was 196 per day. That doesn’t include the emails we’re sending and receiving in our other accounts, nor any of the other new ESI we’re generating with our smartphones, wearables, and social media accounts. Nowadays, the average volume of source data in an ediscovery matter is 479 GB!
Predictive Coding in Da Silva Moore v. Publicis Groupe & MSL Grp
Judges continue to follow Judge Scheindlin’s lead in proactively addressing the issues caused by this data explosion. Predictive coding—also called TAR, for instance, is one of the best ways to reduce the burden of linear, doc-by-doc review for large data sets, but its use is still not well-established or well-understood. Judge Peck stepped into the fray in 2012 with his opinion in Da Silva Moore v. Publicis Groupe & MSL Grp, helping legitimize the use of predictive coding for large cases.
Transparency & Predictive Coding
Judge Peck didn’t stop there, however. While attorneys are increasingly expected to understand relevant ediscovery principles and technologies (e.g. the nine ediscovery practices that the California State Bar suggested every California attorney should know), there is still confusion as to how much transparency and cooperation is required from a party employing predictive coding. Recognizing this, Judge Peck took the opportunity to address the issue earlier this month in his opinion in Rio Tinto Plc v. Vale SA, going beyond the facts of the case to suggest that parties taking advantage of predictive coding need not necessarily disclose the documents that were used in seed sets to train the system. As he wrote:
One point must be stressed—it is inappropriate to hold TAR to a higher standard than keywords or manual review. Doing so discourages parties from using TAR for fear of spending more in motion practice than the savings from using TAR for review.
Conclusion: Judges Move Ediscovery Forward
Judge Scheindlin, Judge Peck, and other leading jurists have moved the ediscovery industry forward, while remaining focused on fair outcomes for all litigants. The volume of ESI continues to grow, so the use of advanced techniques like predictive coding are increasingly necessary to manage ballooning ediscovery costs. However, the importance of reliably, efficiently gathering relevant information to (dis)prove a case remains unchanged. Forward-thinking opinions from the bench keep the focus where it belongs: harnessing, rather than hindering, the unrelenting march of technological progress.