Gibson, Dunn & Crutcher has released its latest report on electronic discovery, and, as usual, it's must-reading for anyone who wants to keep pace with this unsettled area of the law. (We wrote about the firm's last report in July.) This comprehensive analysis, based on a review of 323 decision, contains one surprising finding. Courts are imposing fewer e-discovery sanctions: Last year they imposed sanctions in 55 percent of the cases where they were sought, compared to 70 percent in 2009. In absolute numbers, sanctions are dropping, too, from 62 in 2009 to 55 last year.
On Friday we talked to three lawyers who worked on this report: Gareth Evans, the co-chair of Gibson Dunn's Electronic Discovery and Information Law Practice Group, partner Jennifer Rearden, and of counsel Farrah Pepper.
"What we've seen [in 2010] is a lot of courts are being more careful and examining the circumstances [before issuing sanctions]," said Evans. They're requiring a showing that any lost electronic materials are not just relevant to the case but would have been prejudicial to the party that lost them, he said. "We've seen [this approach] even in the Southern District of New York, which is pretty important," he added.
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Source: law.com
By: Susan Beck
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