Wearable Tech Will Create Discovery Challenges and Other 2016 Predictions

Editor’s Note: The author of this post works in the eDiscovery industry.

By Chris Gallagher, national director of eQ discovery services

The end of each passing year brings with it certain inevitabilities; the holidays, overeating, and of course the seemingly never ending “lists” of strides that were made in the past twelve months. So as we start 2016, it is only natural to look at what we should expect for the coming year. The legal world often moves at a snail’s pace and changes often take time, but there are some areas that the sector will focus on and likely move faster than usual on.

Is document review legal work? Yes. Definitely. Well probably.

Late last year, a suit was brought against a prestigious and well-known global law firm headquartered in New York City and a legal staffing provider in which the Second Circuit Court of Appeals ruled the case should continue and likened the services provided by the attorney to that of a machine. The case eventually settled without answering the question definitively. Meanwhile a similar suit against another global firm was recently tossed with the judge ruling that although the work is “modest in intellectual scope” and “banal” it was never-the-less the practice of law. Ouch, “modest in intellectual scope,” not something that someone with $100,000 in law school debt wants to hear. This is likely not the end of this issue as law schools continue to mass-produce young attorneys hungry for work.

Technology-assisted review will finally gain mass adoption, sort of.

Expect a significant number of individuals and organizations successfully using computer assisted review and/or predictive coding to realize the following elements: it’s not that intimidating, it’s not only for monstrous data sizes, and it can help the review of even the most modest datasets move quicker with significantly less errors. A last-minute addition to the proposed Committee Note to Rule 26 of the Federal Rules of Civil Procedure, (FRCP) endorses the use of “computer-based methods of searching.” The addition “encourage[s] courts and parties to consider computer-assisted searches” as means of reducing the cost of producing Electronically Stored Information (ESI) thereby addressing “possible proportionality concerns that might arise in ESI-intensive cases.”

Movement Around Safe Harbor Provisions

Another area to watch are the Safe Harbor provisions in the FRCP, due to a last minute rule amendment before adoption. If a party can show that “reasonable steps” were taken to preserve data, then sanctions are not available — even if some ESI has been lost. The rule is not meant to be “a strict liability rule” and seeks to incentivize reasonable preservation behavior by providing assurance that a party that acts in good faith will escape the harshest penalties. “Good Faith” in this case does not require adherence to the “best” or most burdensome practices and a “party may act reasonably by choosing a less costly form of information preservation.” The first cases that come through the courts this year dealing with lost ESI will help carve out what those “reasonable steps” looks like.

Wearable Devices and Discovery Meet

As technology continues to advance at lightning speeds, one of the hottest new trends in the last couple of years is the wearable device industry. Data sourced from wearables will inevitably present many new challenges in the litigation and discovery arena. When it comes to corporate data, there is seldom any real question as to where the data is housed, who is in control of it, and who can retrieve it, but the game changes as data become more transient, less static, and new file types are introduced.

A fitness band is a simple example of how complicated things can get. Imagine your entire labor force wearing trackers because they receive a discount on their health insurance — there will be difficult questions to answer including the location of the data, the form, custodial access, method of collection, and presentation. An enterprise solution to respond to discovery requests could quickly spiral out of control.

The best course of action for companies exploring the use of wearables is to examine their current “BYOD,” orbring your own devicepolicies currently in place. It is likely that most wearables will fall under the same umbrella but the question remains; is the umbrella big enough in its current form?

With these trends emerging so early in the year, it’s safe to say that lots of movement will be taking place in the legal sector in 2016. How will these elements fully pan out? Only time will tell.