Impacts of New Tech and Ephemeral Data on E-Discovery

Thanks, Dan. Happy to be here.

Sure.

After almost twenty years in private practice, in February nineteen ninety five, I was appointed as a United States magistrate judge for the southern district of New York, the mother court.

As we call it. And I was there until twenty eighteen, so twenty three years as a judge, and developed a specialty on the court dealing with discovery disputes, and particularly What was pretty new when I got on the bench and less so as I left the bench, that is eDiscovery.

When I decided to retire from the court in twenty eighteen, I went to DAA Hyper in their New York office, where I'm senior counsel, substantively doing copyright and trademark litigation, generally advising the firm and firm clients on discovery.

And sort of the how will a judge react to this argument sort of question. And in addition, doing arbitration, mediation, and some special master works that are sort of the private judging side of private practice.

Which fact, after those twenty three years on the bench, how's the transition be back into private practice?

Is not bad at all. You know, the firm is treating me like I hoped I would be treated. I don't have any billable hour requirements.

The only downside is, yes, I have to keep time in six minute increments like any other lawyer. And I was very good at that in my first time through private practice, but after not doing it for twenty three years, I still hate it. Other than that, I'm having a blast because sort of I get to do what I want.

A little bit.

That opinion came about. It was sort of the third phase of my dipping my toe into what we now call TAR.

I had been asked to do a keynote at one of the discovery conferences on search.

And so I taught myself looking at the literature You know, I had lived through manual search and keywords and all that, but I taught myself about TAR.

Gave that talk and several people in the industry who I respect tremendously sort of came up to me at the end of that keynote and said, you gotta get this out there. You gotta publish, you know, this, etcetera.

Which led to my article search forward in what was then law of technology news, now legal tech news.

And by total coincidence because the way the Southern District in New York runs its distribution of cases. It's not like the district judge said, oh, Peck is knowledgeable about this TAR stuff. Let me send the case to him no just out of the wheel, the case came to me randomly.

And I said to the lawyers perhaps, I shouldn't have, but I did say to them g, you must have thought you died and went to heaven because you both want TAR but differently.

When you got assigned to someone who knows, about TAR.

No good deed goes unpunished later in the case, but we'll ignore that. And, you know, I certainly expected the use of TAR to expand much more quickly and much more use of it than has actually occurred.

Still too much being done with keywords and other less efficient approaches to through today.

Read, you know, the legal tech press whether that's legal tech news and other law dot com companies, whether it's getting perhaps inundated, but getting regular emails for many of the service providers and just see what's out there. And, of course, within the firm, you know, I learned about it from my colleagues and vice versa.

So it's just get as much knowledge as you can. And as, you know, many of the early opinions said when lawyers way back in two thousand and six couldn't handle email because they were computer savvy, and they would look at me and other judges and say, judge, you know, look at my gray hair or look at my lack of hair. I'm too old to understand this.

And the answer is unless you're gonna spout practicing law, you have to yourself understand it or associate with somebody who can help you get through all of this. Ignorance is not bliss.

Just before the pandemic, I was hosting a any discovery get together, and I had a federal court judge from Missouri come talk to the group. And so he was telling the every wall of the attendees that were there. He said, you know, it's really important to understand what ESI actually is. And as an example, I had a rule sixteen conference.

I asked the lawyers, do you have an ESI in this matter? Any one of their lawyers says, no, I don't have any ESI at all. And so the judge says, you don't have any emails? And the lawyer says, of course, I have emails, but I don't have any ESI.

Right? And now that's twenty nineteen.

Where's my royalty?

I think there are those within what we might call the Sedona Bubble or the Georgetown Advanced Discovery Institute bubble who are really, really advanced.

And they know the basics, they know the advanced, they may or may not know how to deal with the newest technology because I think on some of this, nobody has quite figured it out, but they at least know they've gotta do something.

With it. And then there's the rest of the bar who may know that they have emails, but Nowadays, it's not just the mega case.

Every case has relevant ESI.

Divorce case. You know? You may not think of that as something where ESI is important, but other spouses, you know, email, text messages, social media, though, that probably is, you know, cleansed.

You know, let's go back to TAR. I fear that part of the reason TAR is not used nearly as much as it should be is because of the cases where the lawyers get into very costly time consuming fights with the other side about aspects of TAR or they, you know, unknowingly agreed in an ESI protocol to talk about using search terms and then review of the search term hits without specifying whether that review of the hit would be manual review or even worse saying that it would be manual review. And then realizing that the search terms hit on a million documents and manual review would take, you know, three years after the discovery cutoff in the case.

So they wanna use TAR, but they don't want to negotiate TAR with the other side or the other side doesn't wanna negotiate other than to torture the party that wants to use TAR. And then, look, you know, it's sort of we all went to law school because we were promised there would be no math, and now much more with the validation protocols being pushed particularly for use of TAR, there's math.

A complicated math. So, you know, if you fear your adversary is going to make you go through all of that, hopefully in consultation with the client, but you might say You know what?

Easier and perhaps ultimately less expensive to do keywords and manual review, then to do keywords and TAR and lots of motions to compel and motions for protective order. And all of that. That I think is still one of the big detriments or, you know, things that are keeping people from using TAR.

The one other thing I would say with respect to that, a lot of cases may look like TAR is not being used, but there is more use of TAR behind the firewall, so to speak.

Then becomes publicly known to the other side and therefore reported in the case law.

You know, one of the things that we've seen, I think, that the pandemic has really impacted in the industry is we have many, many clients that, you know, very hurriedly put in collaboration tools you know, that are creating all kinds of new data repositories around the organization without necessarily having a strategy or, you know, really understanding the impact of doing that. I'm curious what you've seen from your perspective in terms of how the pandemic has has been changing the industry.

The use particularly of Zoom went up like three thousand percent within a short time after the pandemic.

And use of that for depositions, for court hearings, you know, of the well, either of the it's necessary because the court is closed for two years, or now it's, you know, the court is open, but why should you fly in, you know, lead trial counsel from Los Angeles for a half hour court conference.

So, you know, many great things about that.

We have people working from home and law firms struggling to get people to come back to the office as much as the organization would like.

Use of you know, those sort of collaboration tools and various of the chat tools.

Have really taken off.

That is good. However, now one of the things I would say to those listening if you are recording regular Zoom calls, you know, because you want every salesman, those person, to be able to hear this, and you know with time zones, etcetera. They're not all gonna be on it.

On the day, it happens.

Don't save it for more than a week. If the people haven't caught up or two weeks and listened to it, by then delete it. Because what I fear in six months or a year from now and, you know, maybe it's already happening.

Is all of these particularly audiovisual tools that have been saved for no real business reason are going to become the subject of discovery requests.

And the company isn't necessarily gonna be able to say none of them are gonna have anything relevant to this lawsuit because some employee will say, I remember at Teams meeting I had with my department and I can't quite remember when, but I know we talked about the product that's at issue in this lawsuit.

And then you're gonna have to figure out a workflow to identify which of those audiovisual meetings need to be reviewed and how to review them forwardigation. So that's a potential disaster waiting to happen, which can be Ford off or, you know, fixed. If companies before they're anticipating litigation, go back and purge all of these, mostly ephemeral sort of recordings.

That's one thing.

So as I say, there is the benefit of adaption of this new technology. And as we talked about with TAR, whether it's cost or fear or lawyer conservativeness, getting lawyers to adopt new technology, I mean, the ability to take a video deposition has been around certainly for a number of years, but now it is much more It's done much more regularly and frequently. So that's all good. But then you've also got all the new toys, so to speak, that people have discovered during COVID when they were working at home, some of which get done as corporate technology.

So at least the IT department, not necessarily the lawyers, but the IT department knows that they are using, you know, x y z product.

But I would say there's probably just as much of off the shelf outside of company knowledge or control products, that employees are using that are going to turn out to be necessary to be searched and produced in discovery.

So I mean, one thing for in house counsel and those outside counsel that have regular client contact, make sure that the lawyers are involved with the implementation of any new communication tools within the company.

And, you know, you can't just be lawyers of the division of no, if the company wants to use it, it's probably gonna happen, but you wanna make sure that there are eDiscovery tools within the device or otherwise, you know, that it is implemented in a way that is not gonna be a disaster in the first litigation where that tool is called into question.

That's a big difference.

Well, in some ways, we're probably beyond that point. But we still haven't adapted.

The volume is growing and growing and growing.

We all know that certainly Look. I mean, when I grew up as a baby lawyer in the late nineteen seventies, it was eyes on every document in the case.

And you could do that because, you know, maybe there were five to ten red welds. And, you know, even if the senior lawyer's billing rate, he or she could look at all of those or have an associate screen them down. But you could look at it. Now, I don't think there is any lawyer who would say, you know, I want to personally review every document. Just can't be done.

People think that using keywords often badly designed, and that's another issue, of course.

Followed by manual review, we'll get through the bulk of it. I think, you know, with all the various chat tools that we are fast approaching, if not already there, where there is just too much data. But, you know, if companies are going to use, you know, and particularly where it is an authorized means of communication.

Not an unsanctioned communication tool. If companies are going to use disappearing messaging apps, or whatever it may be. To do business, you can't say there's too much and it's too expensive. We're not gonna look at that. When there is litigation.

And lawyers have to be perhaps more creative in what they really need versus what they're asking for so they're not second guessed or any of that, but to a certain extent is up to the business if business is using a tool, it's gonna have to anticipate that when litigation arises that you're gonna have to search that tool in some way.

Yes.

And I think it depends on what it is being used for and, of course, the when.

You know, if a company is about to do an IPO about to have a merger and it wants all those communications, you know, to a limited number of people and with the highest level of security so that the word of the merger doesn't leak and that changes stock prices and all of that. That is certainly a very legitimate reason for using encrypted messaging or disappearing messaging or any of the things like that.

So a lot depends on timing black depends on you know, if you've been using a certain process, you know, for five years long before any litigation, and all of a sudden you're in litigation, and you stop using it at that point because you know once litigation is anticipated, you have the duty to preserve.

I don't see anything wrong with that at all.

And other than, of course, not starting to use these technologies once you're already under SEC investigation. Do you have any other tips or best practices for companies out there, you know, looking to use these technologies. You know, in my experience, they're proliferate. I mean, we're seeing more and more of them, I think, every every year and it will likely continue.

Yeah. I mean, I would just say, make sure you're doing it as a corporate decision under corporate IT control.

Advice and sign off from the legal department.

And then, you know, it is a business decision. It is a risk reward decision. You know, one merger that blows up might be millions and millions of dollars. One lawsuit that goes wrong because of that might be a hundred thousand dollars. So you know, whatever it is, you know, you're not gonna turn back the clock.

It's like saying, you can't fly to Los Angeles from New York. You gotta take the train across the country. You're not gonna put the genie back in the bottle or any of that. These devices and tools exist if there is a valid business reason for it being aware of the risks when litigation hits.

Companies have to make that decision.

So, you know, having a sit down and saying, let's delete all the Zoom meetings we recorded over the last two years, that is an easy piece to get a handle on. Assuming litigation has not occurred or reasonably anticipated, etcetera.

Let's make sure that, you know, we are deleting all forms of communication regularly to have a very clean house including going back in time for, you know, the nine years of emails under a regular retention policy, that is a much, much bigger project, much more expensive project, and it really becomes a question of Do you wanna start small? Do you wanna start only on a going forward basis and say, we'll get to the old stuff later, which you probably never will, but at least you'll be doing things right going forward.

Record management or whatever are the appropriate name for that.

IT, IT security, legal, the business folks, and that may be different people in different areas of the company.

All of that is information governance, practices, Something we at DLA can help companies with. I had to throw in a little ad there, but That is actually a great transition Judge PAC as we were just about to wrap up. And, you know, first of all, what an honor this was. We really enjoyed this conversation with you.

Thanks, Jared. Well, you know, easy. Go to the DLA Piper website and find all my contact information there.

But to save you that step, you can reach me by email andrew dot peck at u s dot d l at dlapiper.com.

Phone number available on the DLA Piper website.

I'm also on LinkedIn, but I have no idea what the citation is that'll get you into my linkedin account, but I'm sure the listeners of this podcast can find me there as well. The find to that. Fantastic. Judge Peck, thank you.

Well, thank you both. I had a good time.