What Did We Learn About eDiscovery in 2014?

As 2014 draws to a close, it is time to reflect on the cases from this year in eDiscovery. One of the biggest trends I took away from caselaw in 2014, is that more Judges have a greater understanding of eDiscovery, resulting in practical opinions.

Here are the practice areas I found to be the most interesting in 2014, which can be heard in full on my 2014 eDiscovery Year in Review on iTunes or Buzzsprout (Presented by Paragon):

Application of Proportionality Analysis

Judges Questioning Why The Court Was Asked Permission to Use Predictive Coding

We still have Form of Production issues eight years after the 2006 eDiscovery Amendments to the Federal Rules of Civil Procedure

The Importance of Documenting Services for Taxation of Costs

What will 2015 hold for us in the world of electronic discovery? I think we will see proportionality analysis focus on the value of the information sought in relation to the case and not solely just the cost of the discovery. Parties will have to explain how the information is useful, such as how it relates to a claim, opposed to merely saying, “It is expensive.” This will require counsel to focus on the merits of the case and how the requested discovery will help advance the litigation.

I personally hope litigants stop asking Judges for permission to use predictive coding. No one asks, “Can I de-dup the data? Is it ok to use clustering? May I please use conceptual search in addition to keywords?”

The issue with all productions is whether or not the production is adequate. In my view, parties going to war over predictive coding as a means to review electronically stored information is asking the Court to issue an advisory opinion. The time to fight is when the there actually is a dispute because a production is lacking, instead of engaging in arguments of how much a human being can read in an hour compared to a computer algorism.

To learn more on the issues from the past year, please check out my 2014 eDiscovery Year in Review audio podcast on iTunes or Buzzsprout.

I want to thank Paragon for sponsoring the 2014 eDiscovery Year in Review. Please check out their website and recent blog post on the Convergence of eDiscovery and Information Security to learn more about their services.

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