We also saw developments in legal technology and e-discovery law. Here are a few things we learned in 2016.
Even With a Clawback Agreement, Use of Material May Waive Privilege
As the court explained in Certain Underwriters at Lloyds et al v. National RailRoad Passenger Corporation [Amtrak], 14-cv-4717 (E.D.N.Y. Nov. 17, 2016), even with a clawback agreement, documents may lose their privileged nature if they are used in litigation and the party trying to preserve the privilege did not object to use of the documents.
Robot Lawyers Are [Not] Taking Over
There was no shortage of articles in 2016 about technology taking over the practice of law. While we are obviously big proponents of legal technology, we are pretty confident that lawyers are going to be around for a long time. You cannot automate discretion and judgment. However, we also believe the proper use of technology makes lawyers even more effective.
Courts Expect Litigants to Agree on Search Terms
One court told us that electronic discovery should be “a party driven process” and that litigants must cooperate on e-discovery issues, including devising search terms and protocols.
In Fact, E-Discovery Should be a Cooperative Process
Speaking of e-discovery cooperation, we also wrote about a few areas in electronic discovery about which parties could work together.
“Possession, Custody & Control” Tackled by The Sedona Conference
In a 2016 report, the Sedona Conference weighed in on a conflict among courts as to what constitutes “possession, custody and control” of electronically stored information (ESI) and other materials subject to disclosure during litigation. The report suggests that for a party to have “possession, custody or control” of documents or ESI, they must be in actual possession of the material or have “the legal right to obtain and produce the [d]ocuments and ESI on demand.”
Courts Weigh in on E-Discovery Proportionality
In late 2015, significant amendments to the Federal Rules of Civil Procedure took effect including a renewed emphasis on discovery proportionality. In 2016 several courts addressed e-discovery proportionality. As we detailed in this post, one judge observed “[n]o longer is it good enough to hope that the information sought might lead to the discovery of admissible evidence. In fact, the old language to that effect is gone. Instead, a party seeking discovery of relevant, non-privileged information must show, before anything else, that the discovery sought is proportional to the needs of the case.”
We hope you had a great 2016. Here’s to an even better 2017!