Notable E-Discovery Articles August 2011

Adversary Case Assessment: Putting Your ESI To Good Use

A good basic overview on how to assess the opposing side's production.

Are E-Discovery Sanctions More Fear Than Reality?

"K&L Gates' Thomas Smith said sanctions are a bigger fear for attorneys who don't understand the applicable rules than for those who know the rules and case law."

Are Employers Still Confused When it Comes to E-discovery Preservation?

"The bottom line is that having the best litigation strategy to defend against an employment discrimination claim means very little if it is unconnected to meeting basic e-discovery preservation obligations."

Bit-By-Bit: A Reality Check

A look at targeted vs. forensic image collections and common practices.

Cloud Cover: Cloud-based e-discovery is easier, cheaper, and improves quality and efficiency.

An easy to understand description of what the elusive term "cloud" means and how it's changing the world of e-discovery.  " The cloud will make EDD easier and cheaper while improving the quality and efficiency of preservation, search, review and production."

Controlling Data In A Social Media World

 "If you are proactive and you have taken prudent steps, it changes the control of the conversation." 

  E-Discovery Evolution: Costs of electronic discovery are growing

"A lot of the costs in e-discovery are driven by paranoia because counsel or the party themselves don't really know the rules and don't know what the case law says, and they misunderstand and think we have to collect every single thing,"...

Courts Skeptical Of Facebook Evidence

There are still no clear-cut rules for allowing social media as evidence.  "...In its ruling, the Appellate Court said social media messages are analogous to hand-written statements, which can be forged. When the purported writer denies writing the statement, it is up to the person proposing its admission into evidence to prove its authenticity."

De-NISTing: De-FECTive

Craig Ball looks at the NIST list and performs his own research on how up to date and effective it is.

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.