Report: 2016 a Good Year for E-Discovery

    Sep 30, 2016

    2016 is shaping up to be an eventful year for e-discovery, according to a midyear report.

    With the amendments in effect and plenty of new technologies, Gibson, Dunn & Crutcher's "2016 Mid-Year Electronic Discovery Update" describes e-discovery as evolving, ripe for innovative technologies, struggling to keep pace with new sources of discoverable information, and watchful of post-FRCP changes.

    The report's authors also said e-discovery looks "much better" than in years past, in part because Rules 26(b)(1) (discovery must be relevant and proportional) and 37(e) (preservation responsibilities and sanctions for failure to preserve) have “for the most part” had “their intended effects," noted co-author Gareth Evans, litigation partner at Gibson Dunn. This is a stark change from the 2006 amendment to Rule 37(e), which was not applied as intended, he added.

    According to the report, the positives include the following:

    • In the first six months of 2016, Rule 37(e) was applied in 32 decisions, with 13 granting sanctions and 19 denying them. This is a “substantially slower” pace than in past years, the report says (150 sanctions in federal courts in 2011, and 120 in 2012). The report says the reduction is likely due to a growing awareness of preservation duties.
    • A rational, easy-to-apply set of criteria in amended FRCP 37(e) for imposing sanctions for failure to preserve discoverable electronically stored information (ESI) seems to have resulted in shorter sanctions decisions that are faithful to the amended rule, as well as in substantially fewer sanctions motions and decisions.

    • Courts also appear to be faithfully implementing the requirement of amended Rule 26(b)(1) that discovery must be both relevant and proportional, with courts repeatedly holding that merely establishing relevancy but not proportionality is not enough. Despite once implicitly allowing broad "fishing expeditions," courts are now explicitly prohibiting them.

    • What appears to be a dramatic reduction in the number of sanctions decisions likely is due, in part, to greater awareness among litigants of preservation duties, as well as improved legal hold practices. But it is almost certainly also a result of a clearer, more consistent legal framework, which should discourage sanctions motions that do not satisfy each of the criteria set forth in the amended rule – particularly the elimination of the harshest sanctions where there was no intent to deprive other parties of the lost information.

    The report also identified several challenges to consider:

    • New sources of potentially discoverable ESI, such as text messaging and social media, have created new risks and difficulties for identification and for legal hold preservation and collection, and, further, have made it difficult to determine just what is discoverable. Indeed, many of the sanctions decisions so far in 2016 have involved failures to preserve text messages on mobile devices, the report found.

    • The potential of predictive coding to greatly reduce costs and increase accuracy and review speeds remains largely unfulfilled, hampered by several factors, including a lack of awareness of the technology, lawyers' comfort with traditional keyword searches, obstacles raised by those opposing its use (such as demanding access to irrelevant documents in training sets), and the limited availability of the latest predictive coding software.

    • Vendors have yet to put together a single, full-suite of "best in breed" software for companies to handle e-discovery tasks internally from beginning to end (legal holds through production). It is likely only a matter of time before they do so, however, the authors noted.

    For an overview of the amendments, with a particular emphasis on the records and information management implications, check out these resources from the ARMA online store (

    • Get Ready for the Discovery Rules Amendments (on demand web seminar)
    • FRCP Changes: What RIM, IG, and E-Discovery Professionals Must Know (on demand web seminar)
    • E-Discovery: An Introduction to Digital Evidence
    • Discovery of Electronically Stored Information, by Ronald J. Hedges
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