2011 Mid-Year E-Discovery Update

A look at Gibson Dunn's analysis of 187 e-discovery decisions from January 1 to June 15th, 2011.  You can read the full report here. Selected highlights from the analysis:

• "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."

Cooperation seems to be a common theme, especially when talking about search methodology/workflow and production requests/disputes.  It's something we see all the time in e-discovery articles: communication between opposing counsel, legal vs. IT, and in-house vs. outside counsel.  It's obviously still a challenge and will be interesting to see how these communication patterns evolve as the courts put more emphasis on resolving issues and disputes before seeking judicial assistance.