Over the past year, bar associations and courts throughout the country found themselves addressing more and more issues related to electronic discovery. The states where Lewis Roca Rothgerber has offices were no exception to this trend. Anyone who litigates in the Mountain West or California should be aware of the following key developments from 2014:

  1. All states. In September 2014, the Judicial Conference Committee on Rules of Practice and Procedure approved proposed amendments to the Federal Rules of Civil Procedure. If approved by the Supreme Court and Congress, several of the amendments will affect how parties preserve and produce electronically stored information (“ESI”). For example, the proposed changes to Rule 37(e)—which clarify that sanctions for the destruction of ESI can be “no greater than necessary to cure the [resulting] prejudice,” and which limit adverse inference instructions to cases in which a party is found to have “acted with the intent to deprive another party of the [destroyed] information’s use in litigation”—may encourage businesses to revisit costly “keep everything” document retention policies. Moreover, the proposed changes to Rule 26—which reflect a heightened focus on proportionality—may help to accelerate the acceptance and adoption of predictive coding and other cost-saving tools by courts and litigants.
  2. Arizona – Vicente v. City of Prescott, 2014 WL 3894131, *12-*13, n.8, n.10 (D. Ariz. Aug. 8, 2014). Consistent with the proposed revisions to Rule 37, the Vicente court suggested in dicta that adverse inference instructions for destruction of evidence must be premised on a finding of bad faith. The court thus called into question its decision in Surowiec v. Capital Title Agency, 790 F. Supp. 2d 997, 1005 (D. Ariz. 2011), which had held that an adverse inference instruction could be imposed upon a showing of gross negligence.
  3. Arizona – Miller v. York Risk Services Group, 2014 WL 1456349, *1-*2 (D. Ariz. Apr. 15, 2014). Miller reflects the reluctance of many courts to permit wide-ranging discovery about discovery, including eDiscovery—especially in the absence of substantive discovery disputes or suggestions of misconduct. Reasoning that “discovery should start with inquiries that seek substantive information,” the Miller court refused to enter an order compelling the defendant to participate in a Rule 30(b)(6) deposition concerning “the manner and methods used by Defendant to store and maintain electronically stored information.” However, the court acknowledged that such a deposition might become appropriate later in the case.
  4. California – The State Bar of California Standing Committee on Professional Responsibility and Conduct, Proposed Formal Opinion Interim No. 11 0004 (Feb. 28, 2014).  This landmark opinion recognizes that an attorney’s ethical obligations—including the duty of competence and, in some circumstances, the duties of confidentiality, candor, and avoiding suppression of evidence—require at least a basic understanding of issues relating to eDiscovery. An attorney who is not competent to handle eDiscovery issues in a particular case must (1) timely acquire sufficient skills, (2) associate with or consult technical consultants or competent counsel, or (3) decline the representation.
  5. California – Independent Living Center of Southern California, et al. v City of Los Angeles, et al., No. CV 12-551-FMO (C.D. Cal. June 26, 2014). While predictive coding is finding greater acceptance as courts and litigators learn more about how it can be deployed to reduce costs and improve efficiency, use of the technology can lead to new kinds of discovery disputes. The Magistrate Judge’s order in Independent Living Center of Southern California reflects both trends. Earlier in the case, the defendant had been ordered to use predictive coding to locate relevant documents because its review of 2,000,000 documents “obviously” could not be done manually and because attempts at key word searching hadn’t resulted in sufficient culling. However, the parties disagreed about whether additional quality assurance was needed as part of the predictive coding protocol used by the defendant. Rather than ordering briefing and a hearing on the quality assurance issue, the Magistrate Judge took a practical approach to the dispute by directing the Plaintiffs to pay for one-half of the admittedly minimal costs of performing the additional quality assurance step.
  6. California – Vasquez v. California School of Culinary Arts, Inc., 230 Cal. App. 4th 35, 42-45 (App. 2014). While eDiscovery obligations no longer come as a surprise to most repeat litigants, many subpoena recipients—who, compared to parties, have little to gain from the adoption of reciprocally applied eDiscovery protocols—still balk at the idea of searching for and producing electronically stored information in an electronic form. However, Vasquez confirms that, under California statutes and corresponding federal rules, the fact that a subpoena seeks electronically stored information or specified production in electronic rather than paper form does not render the subpoena unduly burdensome. And while courts remain reluctant to impose substantial costs on disinterested third parties, Vasquez suggests that litigants who are willing to pay for some or all of the additional costs associated with the extraction and production of data in electronic form should be able to secure such data in response to subpoenas.
  7. California – Boston Scientific Corporation v. Lee, 2014 WL 3851157 (N.D. Cal. 2014). As attorneys learn about the kinds of evidence that can be gleaned through eDiscovery, their first instinct is often to get their hands on everything under the sun.   Boston Scientific Corporation—in which the plaintiff tried to insist that a non-party competitor provide it with complete forensic images of two laptops in response to a subpoena—demonstrates the pitfalls of such a kitchen-sink approach to eDiscovery. As the court explained, the requested forensic images would have resulted in disclosure of privileged communications and trade secrets and thus ran afoul of Rule 45. The court acknowledged that those concerns could have been addressed by using an independent vendor to isolate pertinent information contained in the requested full forensic images—an approach initially suggested by the subpoena recipient. But because the plaintiff had previously rejected such a compromise, the court quashed the subpoena and refused to order any production at all. In doing so, the court explained that “[t]he time to tap flexibility and creativity is during meet and confer, not after,” and reasoned that allowing the plaintiff “to seek shelter from a fallback position that [the subpoena recipient] previously tendered in good faith would make a mockery of both parties’ obligation to meet and confer in good faith from the start.”
  8. Nevada – Painter v. Atwood, 2014 WL 1089694, *4-*9 (D. Nev. March 18, 2014). Painter highlights the importance of considering social media posts and text messages when formulating litigation holds or instructing clients on the scope of the duty to preserve potentially relevant evidence. While the plaintiff in Painter admitted deleting Facebook posts about her former employer after retaining counsel to pursue her claim against him, the plaintiff’s attorney argued that sanctions were not appropriate because the plaintiff was “a 22-year old girl who would not have known better . . . .” The court rejected that argument and explained that the plaintiff’s attorney “should have informed her of her duty to preserve evidence and, further, explained . . . the full extent of that obligation.” The attorney’s failure to do so, and the resulting destruction of relevant Facebook posts, led the court to issue an adverse inference instruction that the destroyed evidence was detrimental to the plaintiff’s claims.
  9. Nevada – Progressive Casualty Insurance Company v. Delaney, 2014 WL 3563467 (D. Nev. July 18, 2014). At first glance, this order, which denied the plaintiff’s request to use predictive coding, might be seen as evidence of continued uncertainty as to judicial acceptance of the technology. Upon closer examination, however, it is clear that the court’s refusal to permit the use of predictive coding was driven by Progressive’s unilateral, mid-stream abandonment of the discovery process contemplated by a stipulated Case Management Order, under which Progressive could have applied negotiated search terms to its data set and then produced all search hits subject to a clawback agreement. That being said, the court’s discussion of the heightened cooperation that has often been required of litigants seeking advance approval of predictive coding may lead parties to disclose as little as possible about their use of the technology in order to avoid being ordered to produce seed sets or other nonresponsive documents.
  10. New Mexico – The New Mexico State Investment Council v. Bland, 2014 WL 772862, *5-*6, *17 (N.M. Dist. Feb. 12, 2014). This order—in which the court rejected challenges to proposed settlements after concluding that the plaintiff had “conducted sufficient discovery and investigation to fairly evaluate the merits” of the settling defendants’ positions—is in line with a string of recent decisions that have approved or spoken favorably of predictive coding and other forms of technology-assisted review. In evaluating the investigation in question, the Court noted with approval that the plaintiff’s attorneys had “implemented various advanced machine learning tools such as predictive coding, concept grouping, near-duplication detection and e-mail threading” which “enabled the reviewers on the document analysis teams to work more efficiently with the documents and identify potentially relevant information with greater accuracy than standard linear review.”