Legal Updates

Last fall, I had the pleasure of speaking on a panel at the 2019 Relativity Fest entitled “Why Lawyers SHOULD Be Luddites.” It was a lively discussion about whether lawyers should be luddites, whether robots would be taking attorney jobs, should attorneys learn to code, and how to future-proof yourself. Opinions were split but what struck me the most was that a majority - if not all – of the attendees wanted to learn how to future-proof themselves. In this blog I offer tips on how to take advantage of technologies to do just that.

Generally speaking, the presumption is that third parties will bear at least some of the costs of complying with proper subpoenas. That said, Courts often expect that a requesting party will negotiate in good faith the costs of compliance and, if those costs are significant, the requesting party would agree to cover at least some of the costs or limit its requests in light of the requirement of FRCP 45(d)(2)(B)(ii). As demonstrated by a recent case, though FRCP 45 provides two avenues for a third party to recover its costs for responding to a subpoena in federal litigation, such awards are the exception to the rule.

Even when the need to preserve mobile data is clear, for clients who are not technical experts or who do not have technical experts on staff, how to go about actually preserving that data may not be so obvious. As legal professionals, it is important that we understand how to help our clients preserve mobile data and what pitfalls they may encounter.

We depend on and indeed praise technology for the myriad ways it makes discovery more efficient and less costly than ever before. Such reverence, however, raises the question:  is there a point where the use of technology becomes too much? Can we become so enamored with the technological resources at our disposal that we neglect to use basic common sense and risk waiving certain basic rights? According to the North Carolina Court of Appeals, the answer is a resounding "Yes."

In my role as a Senior E-Discovery Attorney, I often provide guidance to organizations in how to develop and implement policies governing data retention and disposition. When developing those policies, it is critical to consider both the business and legal implications of preserving or deleting data and, ideally, find a balance between the two even when the concerns and priorities may not be the same. A recent case highlights what often proves to be a fundamental tension between the perspective of business stakeholders and legal stakeholders with respect to the preservation of ESI for pending or reasonably anticipated litigation in large corporations.

As you recall, in December of 2015, the amended FRCP 26(b)(1) sought to address the escalating burdens associated with data preservation and production by emphasizing proportionality and defining the scope of discovery. As the latest proportionality rulings show, Rule 26(b)(1) is having an impact on limiting the scope of discovery based on the associated expense and some state courts are even following the federal courts’ lead in enforcing proportionality. Interestingly, while expense continues to be a factor in the proportionality argument, parties’ objections on the basis of proportionality have extended to nonmonetary factors as well, including privacy. As a result, some courts are now recognizing privacy as a consideration in determining whether the discovery sought is proportional to the needs of the case.