Every January for the past few years, Gibson Dunn publishes an extensive summary of the key decisions in the area of electronic discovery. The 2012 edition was published on January 14 and for those interested in staying on top of the latest developments it is worthwhile reading. Following are a few highlights:
As reported, “preservation obligations in advance of and at the outset of litigation continued to be a hot- button issue.” The case law continued to evolve as well. Chin v. Port Authority was seen as a rebuff of Pension Committee’s rule of issuing a written legal hold. Other opinions such as Scentsy showed why oral litigation holds are generally a bad idea. The report also examined how the courts’ thinking and scrutiny is evolving with discussions of sanctions resulting from inadequate litigation holds and a failure to take “affirmative steps to ensure” preservation, such as regular reminders or the lack of adequate follow-up.
The report noted a “dearth of the dramatic opinions of past years” but that “[p]unitive sanctions remain a significant threat hanging over litigations and counsel.” The courts awarded some form of sanctions in 69 cases, or 57.5% of the times when they were sought for ediscovery failures. When sanctions were granted, monetary sanctions such as fees and costs were by far the most common incurred – being used in 44 of the 69 cases. Case terminating sanctions were granted five times in 2012 and were “reserved for instances in which the discovery misconduct was palpable and greatly prejudiced the moving party.”
E-Discovery Reform (pp. 10-14)
The 2012 Year-End Electronic Discovery and Information Law Update includes an outstanding recap of progress toward updating the FRCP in order to reduce the burden of preservation and discovery on litigants. The main thrust is with the federal Civil Rules Advisory Committee consideration of revising Rule 37(e) so the courts would weigh factors such as willfulness, bad faith and proportionality in sanctions motions due to spoliation. A second proposal under consideration to reform the discovery process would update Rule 26(b)(1) and Rule 26(f) that would refine the process and limit discovery in ways to promote proportionality.