Legal Tech New York 2015 took place in early February and the Morris James eDiscovery team was lucky enough to attend for the third straight year. The general impression is that the eDiscovery focus has continued to shift away from the view that predictive coding/TAR is a panacea that will greatly reduce the costs of eDiscovery. It appears that the conversation has moved towards a variety of other methods to improve efficiency and reduce client costs.
Overall, it appears that many are taking a less rigid approach with regard to the whole Electronic Discovery Reference Model (EDRM). Lawyers are becoming more nuanced in their practice. The following is a list of the other key takeaways and topics that were discussed at the conference:
- Self-collection is most likely dead, though not per se impermissible in all jurisdictions (it’s clearly not allowed in the Court of Chancery).
- Lack of technological knowledge is no excuse for not complying with one’s discovery obligations. This is apparent in the amendments to the ABA Model Rules of Professional Conduct. Model Rule 1.1 has since been adopted by the Delaware Supreme Court;
- In order to receive an adverse inference the actions (or lack thereof) of a party have to rise to the level of gross negligence or even bad faith. Strict liability for faulty preservation is no longer the standard;
- As discussed above, it appears that the Predictive Coding/TAR hype is finally starting to wane. Instead people seem to be focusing more on effective project management, information governance and better document review through the use of analytics;
- The FRCP Rule changes may not have the desired effect of reducing costs;
- Clients are starting to pay more attention to whether their outside counsel are technologically literate. They have caught on to the fact that millions can be spent on eDiscovery, and they are starting to ask whether outside counsel is educated on topics such as information governance techniques and usage of analytical tools.