As we welcome the new year, it’s time for many of us to make resolutions. After consulting our crystal ball, here are our suggestions for ways to handle the new normal counsel will face in 2016.
- Learn the new rules. We are in a whole new world with the amended Federal Rules of Civil Procedure that took effect in December 2015, which emphasize cooperation and proportionality. The amendments require lawyers to develop a better understanding of best practices for eDiscovery. Courts will begin to explore these rules in their decisions, and lawyers will need not only to pay attention to how they interpret and enforce them but also to take a more aggressive role in ensuring their clients comply with them.
- Pay attention to technology. With a cascade of state ethics opinions and rules emphasizing the need to develop technical competence, lawyers must be prepared to demonstrate knowledge of tools and techniques for handling electronically stored information in discovery. At least one federal court has already cited the California State Bar’s formal ethics opinion, which suggests that attorneys “should be able to perform” various eDiscovery tasks, including analyzing, preserving, searching for, identifying, collecting, and producing data, either on their own or with the expert guidance of eDiscovery specialists or other counsel. Other courts are likely not far behind, so now is the time to learn about technology or retain the services of an expert.
- Find a workaround to handle data stored abroad. For counsel, no venue is as likely to offer peril as cross-border discovery in 2016. The EU-U.S. Safe Harbor, which many U.S. organizations relied upon to legitimize the cross-border transfer of data, was struck down in October 2015. While there may be progress on an accord that will fill this gap by the January 30, 2016 deadline, the EU has agreed on stringent new data protection rules that will become effective in 2018. The rules, which include the “right to be forgotten” and a requirement that certain companies appoint a data protection officer, include stiff penalties of up to 4 percent of a company’s global turnover for rule violations. Meanwhile, organizations doing business in some Asia-Pacific nations, particularly China, must often tackle data localization laws that require businesses to store data within a country’s borders. Time is of the essence, so counsel must determine how best to handle data stored abroad for litigation and investigation purposes, whether through implementing binding corporate rules or standard contractual clauses or by using mobile eDiscovery technology and services for in situ data processing, review and analysis.
- Investigate how employees create and store data. Many of us are obsessed with the latest devices and apps, and with them, we are unwittingly creating an amazing array of data for our organizations to create and store. Therefore, it is no longer enough for organizations to focus on collecting data from servers, laptops, and mobile devices in eDiscovery. If your collection plans do not contemplate data stored in novel formats and places, you may be missing a significant amount of potentially relevant data. Ensure your data map includes any work-related data from social media, text messages, chat and other apps, the cloud, and the Internet of Things, as appropriate to the matter. And, before discovery arises, devise strategies for preserving and extracting this information, especially since the costs of extracting this information can become prohibitive.