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2015 E-Discovery Case Law Trends.

Byline: Amanda Ciccatelli

2015 was an important year for e-discovery case law: the duty to preserve, emphasis on proportionality and reasonable form of production dominated the year's judicial opinions as courts prepared for the December 1 amendments to the Federal Rules of Civil Procedure.

Recently, the results of Kroll Ontrack's year-end analysis of 55 significant state and federal judicial opinions related to ediscovery in 2015 have recently been released in its 2015 Top Ediscovery Cases report . As Michele Lange, director of thought leadership, Kroll Ontrack told us, "As these scenarios play out and as courts grapple with the impact of the new rules, 2016 has the potential to be momentous."

Lange sat down with Inside Counsel to discuss these and other 2015 trends affecting e-discovery case law. She also spoked to about the five major themes that arose most commonly in the researched opinions: production, preservation and spoliation, cost considerations, procedural issues and sanctions.

In the past year, Kroll Ontrack summarized 55 state and federal judicial opinions related to the discovery of ESI. The five major categories arose most commonly in these opinions included: 35 percent of opinions dealt with disputes over production and methods used; 20 percent of opinions focused on preservation and spoliation, including when the duty to preserve is triggered; 16 percent of opinions addressed cost considerations, such as cost shifting and taxation of costs; 16 percent of opinions discussed procedural issues, such as search and predictive coding protocols, cooperation and privilege and; 13 percent of opinions issued orders regarding sanctions for spoliation or failure to produce.

"Kroll Ontrack has been researching and analyzing salient ediscovery case law for over a decade, and it's clear that ediscovery practices have progressed significantly during that time," explained Lange. "One of the best ways to keep up to date on evolving ediscovery practices is to monitor what judges are saying when confronted with ediscovery issues in cases. On the cusp of FRCP amendments, courts dealt with many key issues -- what data needs to be preserved, the amount of discovery reasonably needed in a case and what happens when ESI is lost or destroyed. As these scenarios play out and as courts grapple with the impact of the new rules, 2016 has the potential to be momentous."

So, why was 2015 an important year for ediscovery case law? According to Lange, in 2015 on the cusp of FRCP amendments, courts dealt with many key issues that the FRCP amendments sought to address -- what data needs to be preserved, the amount of discovery reasonably needed in a case and what happens when ESI is lost or destroyed.

There are several key trends in 2015 case law, she explained. The first one is proportionality which requires finding the middle ground when it comes to scope of discovery. Comprising 35 percent of ediscovery cases this year, production issues dominated judicial opinions, with courts analyzing scope of discovery, proportionality issues and production format. Secondly, when it comes to preservation, reasonableness and an effective legal hold are paramount. In fact, 20 percent of e-discovery cases this year specifically addressed preservation and spoliation issues, with the vast majority of opinions focusing on how and when to utilize a legal hold.

Next, predictive coding is critical to an effective document review. Search protocols, cooperation and privilege issues represented 16 percent of the ediscovery cases in 2015, with judges reiterating the benefits and importance of utilizing predictive coding and other ediscovery search methods to winnow discovery sets. And, in the complex world of e-discovery, cost allocation issues endure. With 16 percent of opinions addressing ediscovery costs, including cost shifting and taxation of costs, 2015 witnessed a persistent appreciation for the expense parties must bear to review and produce ESI.

Finally, courts address appropriate sanctions when parties fail to produce data. Sanctions cases represented 13 percent of 2015 ediscovery opinions, with the most recurrent sanction opinions addressing the reasonableness of the parties' efforts to comply with discovery.

In 2016 the FRCP amendments leave much room for interpretation from the courts. For example, Lange said, will courts hold parties accountable when they only hold "drive-by" meet and confers without raising real, substantive discovery issues at the scheduling conference? To what extent will the new emphasis on proportionality limit the scope of discovery above and beyond current practices? How will courts define reasonableness and good faith when determining if sanctions are appropriate?

"These are meaty issues -- with real impacts for requesting and producing parties -- that will need to be worked out in judicial opinions in the coming months and years. Every year, technology continues to confound lawyers with profound advancements," she said. "I expect more of that in 2016."

So, how exactly are these and other 2015 trends affecting ediscovery case law? According to Lange, Kroll Ontrack has been analyzing salient e-discovery case law for over a decade, and it's clear that e-discovery practices have progressed during that time. Given the maturation of technology and increased knowledge and awareness among the average litigant, today's courts are facing more complex and intricate e-discovery challenges than ever before.
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Publication:Inside Counsel Breaking News
Date:Dec 28, 2015
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