Every week, the Array team reviews the latest news and analysis about the evolving field of eDiscovery to bring you the topics and trends you need to know. This week’s post covers the week of March 18-24. Here’s what’s happening.
Clawback motion for confidential report denied
Sidley’s blog on notable eDiscovery developments and court rulings covers a decision in Adams v. Medtronic in which a federal magistrate judge denied a defendant’s motion to claw back a report that was inadvertently produced.
The case involved allegations that the defendant made a defective surgical stapler that seriously injured the plaintiff. In discovery, the defendants produced an FDA Establishment Inspection Report (EIR) that wasn’t related to the product in the litigation and moved to claw it back as irrelevant and confidential. The plaintiffs argued the document wasn’t privileged and was relevant because it showed the defendant was “slow and too late” to detect defects in their products.
The judge ruled against the defendant because the parties’ clawback agreement didn’t contain a provision regarding relevancy (just privilege) and that the production of the document wasn’t subject to the work-product doctrine; that is, by producing it, the defendant didn’t reveal its legal strategy. A small win for the defendant in this issue was that the judge did agree that the document was confidential, and thus, subject to the protective order filed in the case.
Report: LPO Market to Grow to $132.6 billion by 2033
A recent report by Market.us predicts the legal process outsourcing market, which includes eDiscovery along with document review, contract drafting, and other services, is expected to grow by 24% annually from its current value of $19 billion to $132.6 billion in 2033.
The report also found that eDiscovery represented one-quarter (25.2%) of the LPO market in 2023, citing the increasing complexity and volume of electronic data in legal proceedings, digitalization of legal processes, and the surge in electronic communication. This shows that partnering with the right service provider will be key to companies in the near future to ensure that outsourced eDiscovery is handled swiftly, efficiently and defensibly.
Drafting a document review protocol for mass tort/product liability cases
Ann Motl on GreenbergTraurig’s eDiscovery Watch blog writes about the unique process of drafting a document review protocol for mass tort and product liability cases. These protocols give reviewers background on case themes for the plaintiff and defense as well as the product at issue.
Some of the areas to watch closely, Motl writes, are:
- Product names: The name of the product in the litigation has likely changed over time, so familiarize reviewers with names of prototypes, chemical formulas, and nicknames, for example.
- Timeline: The timing of the product from idea and testing to product launch is useful for reviewers when they are making a responsiveness decision.
- Similar and other products: Reviewers may encounter names of other products in documents and need to know whether they are relevant. By familiarizing them with the product landscape, reviewers can reduce their time spent by excluding documents regarding irrelevant products.
- Health information: Alert your reviewers whether confidential health information will come up during the review review as these will need to be treated with sensitivity and confidentiality.
Federal defenders feeling a greater eDiscovery burden
The median time for criminal cases in U.S. federal courts to close from filing to disposition has increased 60 percent, from 6.5 months in 2018 to 10.4 months in 2023, according to an article posted last week on the United States Courts website. Federal defenders say they need more money for staffing that could speed up eDiscovery review times.
“The more data there is, the longer it takes to close a case,” said Jodi Linker, who leads the Office of the Federal Public Defender for the Northern District of California. “In a routine drug case, we’ve gone from roughly 100 pages of physical discovery to having that, plus hours of body cam footage and multiple electronic devices with text messages and social media posts to review.”
Other recent eDiscovery news and headlines:
