Monetary awards are still the most common sanction, she said, with a few large awards last year, including one punitive award of $600,000.
She explained that termination sanctions are still being used for especially egregious conduct, such as in one case where a party "destroyed a computer with a sledgehammer."
The group discussed several proposed reforms to the federal civil rules of procedure, including one that seeks to limit the most serious sanctions for preservation failures. If changed, sanctions like termination, preclusion of evidence, and adverse inference instructions would be limited to instances where the court finds that the failure to preserve evidence was willful or in bad faith, or that it caused irreparable harm to the opposing party.
If rules changes are made, the process may take months or even into 2014 to complete.
As for predictive coding—that is, the use of sophisticated computer software that statistically analyzes documents—2012 "was a banner year," said Colin Davis, a litigation associate in Orange County, Calif.
Last year was the first where courts finally recognized and endorsed the use of such software, he explained, and the shift has the potential to drastically ease both the costs and the time burdens of e-discovery for many companies.
Davis hastened to add that it's not an "absolute replacement for traditional manual review. And whether it's appropriate depends on the facts of case."
In other areas, Gibson Dunn lawyers discussed:
• Problems with privilege: Reasonable efforts must be prompt, diligent and particular to protect a privileged document and to rectify any accidental disclosure.
• Easing costs: Efforts are increasing to ease the cost and burden of e-discovery, including more hands-on management by the court, more upfront guidance, and more cooperation among the parties.
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