Gibson Dunn - 2011 Mid-Year E-Discovery Update

This 2011 Mid-Year E-Discovery Update analyzes trends and developments in e-discovery based on our review of 187 e-discovery decisions from the federal courts issued between January 1 and June 15, 2011 (listed here in an Appendix). We identified those decisions from various sources, including commercial reporting services and publicly available online repositories.

Highlights from our analysis of these decisions include:

• The number of e-discovery decisions continues to increase at a blistering pace. The 187 decisions we identified in the first half of 2011 represents an 82% increase over the 103 decisions we identified at mid-year 2010.
• The number of instances in which litigants sought sanctions in the first half of 2011 was more than double the number in the same period last year (68 at mid-year 2011 versus 31 at mid-year 2010), and sanctions awards have nearly doubled in absolute terms (38 at mid-year 2011 versus 21 at mid-year 2010).
• Notwithstanding this increase, courts awarded sanctions at essentially the same rate as in 2010 (56% of the instances in which a party sought sanctions in the first half of 2011, versus 55% for the full year in 2010).
• Determining when litigation is "reasonably foreseeable" for purposes of triggering the duty to preserve continued to be a fact-specific analysis.
• Courts continued to emphasize that counsel's responsibility to ensure preservation does not end with timely distribution of a legal hold notice.
• Courts continued to demand cooperation and remained keenly aware of counsel's efforts--or lack thereof--to resolve e-discovery disputes before seeking judicial involvement.
• It turns out that there is such a thing as "discovery karma," at least in the 10^th Circuit, and "ankle-biting" an opponent for alleged discovery glitches may not be appreciated, especially when one's own house is not in order.
• While no reported case addressed the use of predictive coding or other advanced search technologies, there is no doubt that these tools have been noticed, as The New York Times and Forbes focused on their potential impact in featured articles.

To Continue Reading: Click Here
--------------------------------------
Source: gibsondunn.com
By: Gareth T. Evans, Jennifer H. Rearden, G. Charles Nierlich, and Farrah L. Pepper