With new advancements in technology and updates to the Federal Rules of Civil Procedure (FRCP), e-discovery seems well positioned for a major evolution. But for e-discovery veteran Gareth Evans, the industry has been teetering on this cusp of change for quite some time. But going over the brink is a different story.
As an active member of multiple working groups of The Sedona Conference, and author of many Gibson, Dunn & Crutcher biannual e-discovery reports, Evans has been an influential figure in the e-discovery industry for years. After spending almost three decades as a partner at Gibson Dunn, the seasoned litigator has now joined Redgrave as a partner in the firm’s newly opened Los Angeles office.
Evans recently spoke to The Recorder Affiliate Legaltech News about his career move, what changes still need to be made to the FRCP, and why predictive coding isn’t making as big a splash as predicted. Here are highlights from the interview.
Legaltech News: Why did you choose to leave Gibson Dunn?
Gareth Evans: Well, Redgrave is the better fit for my area of focus, which is e-discovery law and information law. Working in a firm with a large team of over 20 highly experienced and specialized lawyers exclusively focused on these areas is preferable for me than to being essentially the one e-discovery guy at a large firm.
You previously noted that Rule 37(e) of the FRCP is not finding its way into many e-discovery court decisions. Do you still believe this is the case?
I should clarify. It isn’t so much that rule 37(e) wasn’t getting itself into decisions but that it wasn’t universally getting into decisions, and there was a large percentage of e-discovery sanction cases that were being analyzed under the old law. I think it’s still a significant issue, maybe not quite as bad as it was initially. But we are still seeing plenty of decisions coming out that don’t reference Rule 37(e), and parties aren’t penalized under the guidelines that the rule sets forth.
One of the solutions is that you need to have lawyers who are involved and knowledgeable about the rule. So I think there needs to be better education with these issues in the bar generally, and if the bar isn’t interested in gaining that knowledge, then they ought to bring in more specifically focused lawyers in this area.
I think one of the things we are seeing, particularly in large cases, over the last decade is where the client is represented in a case or a governmental investigation by a number of different law firms with different specialties. So you have counsel in different areas, but you also have e-discovery counsel.
Do you believe predictive coding is catching on in the e-discovery industry?
There is an old R&B song by Billy Preston called “Nothing from Nothing.” It’s not quite that bad, but from what I’m seeing it’s still only used in a small fraction of cases and investigations. I agree that its use is increasing and there has been growth, but when you take a tiny fraction and multiply it a couple of times it’s still a small fraction. So I think we still have long way to go in terms of the adoption of predictive coding.
Using predictive coding requires a good deal of knowledge about the process and the technology. And there could be a lot of risk involved in its use if it’s not being used by a team of people consisting of the lawyers and the e-discovery technology vendors that really know what they are doing. And I think there are very few lawyers out there with sufficient knowledge about how the process works.
How would you like to see the FRCP updated in the future?
I think one particular gap should be closed. It was clearly the intention of the authors of the 2015 amendment to rule 37(e) that the rule would foreclose courts from imposing sanctions based upon the courts’ inherent powers. In fact, the comment to the 2015 amendment stated that clearly. And yet there have been a number of decisions since the implementation of amendments that have recognized inherent powers to sanction.
So I think an important amendment to close that whole would be to move the statement about inherent power being precluded from the comments to the rule itself.
What is the next big challenge facing e-discovery practitioners?
I think it’s going to be dealing with the proliferation of communication and collaboration tools, which includes social media platforms and applications. But it also includes all kinds of work based-applications for communication some of which involves ephemeral messaging. I think in terms of being able to identify relevant information in those applications, and to preserve, collect and search that information is going to be a big challenge in the future.