eDiscovery Case Law in 2017: Could the Courts Have Done a Better Job?
At the top of each year, Gibson Dunn issues its excellent retrospective covering the major eDiscovery developments and trends for the prior year (available here). For anyone looking for a quick recap of the leading cases and “pulse” of the legal side of our industry, it’s a great resource.
Distilling the case law identified in the report yields the following high-level observations.
- Many Courts Apply Amended Rule 37. Amended Rule 37(e) – which concerns sanctions for the spoliation of evidence, including electronic evidence – may finally be gaining traction. “Most courts are faithfully applying the requirements of amended Rule 37(e) to sanctions motions, only awarding the most serious sanctions where the responding party destroyed evidence with the intent to deprive, tailoring sanctions to be proportionate to actual prejudice, and denying sanctions where there was no prejudice.”
- But Some Courts Still Behind. That said, I found it interesting (and a bit surprising) that – according to the cases identified in Gibson’s report – a number of courts continue to analyze spoliation motions on common law grounds that pre-date the 2015 Federal Rule amendments. Also surprising, the report indicates that reliance on “inherent powers” to sanction for spoliation persist, despite notes to Rule 37(e) that the amendments were intended to foreclose such reliance. The moral of the story, at least for last year: don’t assume your court or judge knows the revised rules.
- Proportionality Gains Traction. Those of us who deal on a regular basis with asymmetrical litigation – or those of us whose clients’ simply face ever increasing mountains of documents and data that might be potentially relevant to a given matter – should be pleased to learn that “[p]roportionality continues to gain traction in limiting the scope of discovery.”
- But Circuits Remain Split on Possession, Custody, and Control. On the other hand, those of us with clients that find themselves caught between the legal right test and the practical ability test when it comes to possession, custody, and control issues – based on no good reason but where they find themselves in court – will find little comfort to know that “there continues to be a split in authority between courts applying the [tests].” I blogged last year about the split in authority and a reasonable resolution here.
- TAR Becomes More Widespread. Continuing its slow march to relevance, the use of technology assisted review (or TAR) “appears more widespread than in past years, particularly for requesting parties’ review of substantial incoming productions and in symmetrical litigation involving large document volumes, where both sides may want to use TAR.”
- But Data from Social Media, Mobile Devices, and the Cloud Grows. And finally – and not surprisingly – discovery of social media and the plethora of data contained on both mobile devices and in the cloud continues its rapid march forward. Of note, “earlier notions of social media having a ‘special status’ because of privacy concerns . . . are giving way to social media being treated no differently from other forms of evidence.”
In short: much to like about the case law last year, but still plenty of progress to be made as we enter 2018.