2022 Tips of the Month: A Compilation

In 2022, litigators and eDiscovery practitioners faced many new developments and challenges. Companies grappled with how “the new normal” of the workplace impacts information governance policies. Lawyers contemplated how to navigate sanctions for spoliation of evidence being treated differently in different jurisdictions. And eDiscovery special masters rose to prominence as parties to complex lawsuits seek expertise and efficiency in complex discovery disputes. Highlights from Mayer Brown’s Tip-of-the-Month coverage of these topics last year are recapped below.

• Adapting Information Governance and eDiscovery to the “New Normal.” The COVID-19 pandemic imposed a remote working environment, particularly in professional services, which persists in many organizations. This change also prompted—and provided opportunities for—businesses to update their information governance and eDiscovery protocol.
  • Legal hold notices may now place a greater emphasis on data and documents stored outside an organization’s offices and servers, given that more people are working outside the office.
  • The increase in work-from-home opportunities also means that new strategies are needed for remote data collections. Companies may need to look beyond their own servers and physical offices to satisfy their discovery obligations.
  • Data mapping can help face these challenges. It helps determine where information is stored, records a description of the data, and assigns responsibility for maintaining the data. This tool has seen a revival in light of the expansion of technological applications that have been implemented across the workplace as employees telework more regularly.
  • Technological advances in document review enable legal teams to more easily assemble high-quality document review teams while streamlining the process, maintaining efficiency, and even better managing costs. This is especially true as remote work has become more prevalent. Now document review teams can be staffed from across the country instead of at a single location.
• Spoliation Sanctions for Electronic and Non-electronic Evidence. An automobile manufacturer sues a car dealership in federal court, arguing that the car dealership intentionally damaged hundreds of engines. The dealership responds that the engines at issue had been discarded or sent to the scrap yard, so they are not discoverable. The dealership also claims that it has no hard copies of reports detailing the defects and that the electronic versions of these reports were deleted. The manufacturer wants sanctions. What standard(s) could apply?
  • Federal Rule of Civil Procedure 37(e)’s Standard for Electronically Stored Information- Federal Rule of Civil Procedure 37(e) was amended in 2015 to provide a uniform standard for courts to apply when assessing sanctions of Electronically Stored Information (“ESI”) sanctions. This rule helps ensure uniformity among jurisdictions and is in contrast to the standard for sanctions for the spoliation of tangible evidence.
  • The Fourth Circuit Standard for Tangible Evidence- In the Fourth Circuit, sanctions for the spoliation of tangible evidence require a showing of culpability. Specifically, the court will not grant an adverse inference unless the party seeking sanctions can show that the destruction of tangible evidence was not an accident.
  • The Seventh Circuit Standard for Tangible Evidence- In contrast, the Seventh Circuit sets a higher standard, requiring a showing of bad faith for any sanctions to be imposed in federal question cases or when the spoliation occurred after the initiation of the lawsuit. A different set of rules apply in diversity jurisdiction cases.
  • However, for severe sanctions, such as an adverse inference, a dismissal, or default judgment, all courts agree that there must be a finding of bad faith and prejudice.
• What Is the Role of a Special Master in E-Discovery Disputes? As civil litigation becomes more complex, special masters have become more prevalent in discovery disputes. Some jurisdictions have implemented an application process to become an eDiscovery special master, ensuring that the appointed special master bring particularized experience to the litigation.
  • A special master can be appointed when (1) the parties consent to have a special master perform certain duties or (2) the judge decides a special master is needed to address pre-trial matters that the court itself cannot efficiently resolve.
  • Special masters can bring efficiency and expertise to discovery. Even though the parties pay for the special master, the special master can help minimize the chance of disputes at the outset of litigation or can help efficiently resolve disputes once they arise. For example, a special master can help parties draft ESI and discovery protocol early in litigation as well as resolve disputes once litigation is well underway.

As we continue into 2023, and as discovery continues to take an even more prominent role in litigation, we expect that many of these trends and developments will continue and these tips will remain relevant.