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.

Notable e-Discovery Articles 7/14 - 7/20

Ascending to the Cloud Creates Negligible E-discovery Risk

"...Cloud users will undoubtedly benefit from advances in technology as well as the experience that cloud administrators have gained in responding to e-discovery requests.

The hope is that these efficiencies will translate directly to the end-user. At the end of the day, in-house counsel should be confident that (if managed properly) the benefit of moving a company’s data to the cloud outweighs the risks and costs associated with producing data from the cloud as part of a lawsuit."

Court Case Tests Right To Withhold Passwords

The Department of Justice is attempting to compel a defendant to share her hard drive encryption key, which might violate her Fifth Amendment rights against self-incrimination.

Do Lawyers Need to Just “Eat Their Peas” (Learn E-Discovery)?

We all know the firms where certain lawyers don't even own a computer, let alone understand concepts and processes behind ediscovery.  This blog post provides some great perspective on those individuals and firms.

How to Manage ESI to Rein In Runaway Costs

It's easy for e-discovery costs to get out of hand.  This article provides some good insight into creating a consistent, defined, and documented process for handling e-discovery.