In the past two years, 90% of the world’s data has been created, coming from a wide variety of sources. From automobile black boxes, cloud storage, to wearable fitness trackers, data is being collected and processed in ways barely visible to the end user. With the rise of the Internet of Things, technology has and will continue to become more and more integrated. Understandably, the rise of big data has pushed traditional legal discovery practice to its limits.
The 2015 amendments to the Federal Rules of Civil Procedure put a greater responsibility on the parties and their attorneys to actively manage the discovery process and meaningfully meet and confer regarding the scope and practicability of collecting relevant data. For example, Rule 1 was amended as follows: “[The Federal Rules] should be construed […] by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” By adding “and the parties” into the Rule, the Courts may not substantively alter obligations (though some argue it does), but it certainly sets the expectations that parties will actively seek ways to limit costs and expedite disputes. Likewise, Rule 26(b) codifies a proportionality standard for determining whether a party can obtain discovery:
the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.
In keeping with these rule changes, U.S. Supreme Court Chief Justice John Roberts has stated that:
the [discovery] process must provide parties with efficient access to what is needed to prove a claim or defense, but eliminate unnecessary or wasteful discovery. The key here is careful and realistic assessment of actual need. That assessment may […] require the involvement of a neutral arbiter […] to guide decisions.
Many attorneys now follow Chief Justice Robert’s words, and seek the aid of technical e-discovery neutral arbiters, to help reduce discovery costs and expedite discovery.
What Does a Technical e-Discovery Neutral Do?
A technical e-discovery neutral helps the parties and fact-finder in charge of the case answer the questions of what to collect and how to collect it. Indeed, there are cases where even the parties do not know what data they have, where their data is stored or how it is used. Technical e-discovery neutrals can help develop a process for identifying, extracting, analyzing, verifying, and validating relevant data. The neutral can do this by dealing impartially with technological stakeholders to determine what can and cannot be preserved or collected, and how much these efforts may cost.
In managing a discovery dispute, a technical e-discovery neutral can: determine how to collect from difficult systems; create protocols that govern the parties’ discovery obligations; understand how to best review large quantities of data; search data in a reasonable manner; help the parties in their keyword selection; and utilize predictive coding and/or technology assisted review systems. Importantly, all of these functions are case-agnostic, whether it be a trade secret, mass tort, partnership, patent, or other dispute — as long as there is complex discovery, a technical e-discovery neutral can be a useful asset to the parties.
While a technical e-discovery neutral can be an asset in minimizing the cost and impact of discovery, it is not always necessary to seek the aid of such a specialized resource. The below list of questions, while not exhaustive, is a good starting point for considering whether to seek the aid of a technical e-discovery neutral:
- Does the discovery dispute focus on preserving, collecting or spoliating electronic data?
- Does the dispute involve data on proprietary or heavily customized systems?
- Will a protocol need to be prepared to govern the parties’ compliance with their e-discovery obligations?
- Are there large quantities of data that will need to be retrieved or processed, searched and reviewed?
Finally, if you are considering seeking the aid of a technical e-discovery neutral, early intervention is key. While technical experts may be able to remediate the issues caused over the course of a dispute, it is much faster and cheaper to seek the aid of an expert prior to issues arising. Additionally, the Federal Rules have shortened deadlines, forcing parties to engage in early case management. For example, Rule 16(b)(2) requires that scheduling orders be issued no later than 90 days (shortened from 120 days) after a defendant is served. Parties must engage in a tremendous amount of preparation in advance of the initial scheduling conference, and if there are complex discovery issues, 90 days may be a difficult mark to meet.
In those circumstances, seeking the aid of a technical e-discovery neutral may help ensure that all parties are able to satisfy the requirements of the Federal Rules.