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A year after the 2015 amendments to the Federal Rules of Civil Procedure (FRCP) went into effect, guidance on proportionality in e-discovery requests and the preservation and spoliation of electronically stored information (ESI) have dominated federal e-discovery rulings, according to the “2016 Top EDiscovery Cases” report by Kroll Ontrack.

In sum, the increased amount of court opinions have sought to educate and better define how the FRCP amendments are to be applied by attorneys.

In looking at 57 federal opinions on e-discovery in 2016, the report found a 56 percent increase in cases addressing FRCP Rule 26 from 2015. Rule 26 concerns proportionality and the scope of discovery, as well as the production of discoverable items.

The report also found a 32 percent increase from 2015 in the amount of opinions addressing Rule 37(e) on preservation and spoliation of ESI, as well as an 8 percent rise in opinions concerning procedural e-discovery issues, such as predictive coding (also commonly known as technology-assisted review or TAR).

Michele Lange, director of thought leadership at Kroll Ontrack, noted there were “certainly a number of cases where judges needed to educate parties on the new rules and instill the importance of the FRCP amendments.”

This is perhaps no surprise given that attorneys’ lack of awareness or an unwillingness to account for the 2015 amendments has been a challenge for many judges in 2016.

Among the opinions that sought to educate parties on the amendments, Lange specifically highlighted Fulton v. Livingston Financial LLC as a prime example of the new discovery landscape. In the case, “the defendant’s attorney cited the pre-2015 FRCP amendments, claiming that he acted in ‘good faith’ because the new version of Rule 26 did not change the meaning of relevance,” Lange explained.

The court, however, staunchly disagreed, calling the use of the old amendments out-of-date and stressing the 2015 amendments changed what is now deemed discoverable information. “Parties cannot purposely ignore or recklessly fail to address the new proportionality requirements of Rule 26(b)(1),” Lange said. ” Fulton proves that courts simply will no longer tolerate such outdated and out-of-touch legal advocacy.”

While courts have been educating attorneys on proportionality, they also seek to fine-tune how Rule 37(e), concerning the preservation of ESI, is applied in discovery as well. Lange noted this has always been a challenging area for e-discovery law, especially given that “what is considered ‘proper preservation’ is a blurry line, often dependent upon a myriad of case-specific facts, which makes it ripe for courts to intervene and clarify when disputes arise.”

Lange expected this fine-tuning to continue in 2017 with “a steady stream of cases addressing reasonable steps to preserve, intent to deprive another party of relevant ESI, and the inherent power of the court to administer sanctions when ESI is lost.”

Though courts are offering guidance on how to more specifically preserve ESI, they have refrained from requiring parties to use TAR in the e-discovery process. In 2015, Lange said, courts “considered the parties’ TAR protocols and the desirable levels of transparency and cooperation required when using predictive coding.”

This year, however, “two key opinions, Hyles v. New York City and In re Viagra (Sildenafil Citrate) Products Liability Litigation, noted the efficiencies associated with TAR, but refused to compel or force a party to leverage the cutting-edge technology,” he added. “Instead, it was reiterated that a responding party is best situated to decide how to search for and produce ESI responsive to a document request.”

A year after the 2015 amendments to the Federal Rules of Civil Procedure (FRCP) went into effect, guidance on proportionality in e-discovery requests and the preservation and spoliation of electronically stored information (ESI) have dominated federal e-discovery rulings, according to the “2016 Top EDiscovery Cases” report by Kroll Ontrack.

In sum, the increased amount of court opinions have sought to educate and better define how the FRCP amendments are to be applied by attorneys.

In looking at 57 federal opinions on e-discovery in 2016, the report found a 56 percent increase in cases addressing FRCP Rule 26 from 2015. Rule 26 concerns proportionality and the scope of discovery, as well as the production of discoverable items.

The report also found a 32 percent increase from 2015 in the amount of opinions addressing Rule 37(e) on preservation and spoliation of ESI, as well as an 8 percent rise in opinions concerning procedural e-discovery issues, such as predictive coding (also commonly known as technology-assisted review or TAR).

Michele Lange, director of thought leadership at Kroll Ontrack, noted there were “certainly a number of cases where judges needed to educate parties on the new rules and instill the importance of the FRCP amendments.”

This is perhaps no surprise given that attorneys’ lack of awareness or an unwillingness to account for the 2015 amendments has been a challenge for many judges in 2016.

Among the opinions that sought to educate parties on the amendments, Lange specifically highlighted Fulton v. Livingston Financial LLC as a prime example of the new discovery landscape. In the case, “the defendant’s attorney cited the pre-2015 FRCP amendments, claiming that he acted in ‘good faith’ because the new version of Rule 26 did not change the meaning of relevance,” Lange explained.

The court, however, staunchly disagreed, calling the use of the old amendments out-of-date and stressing the 2015 amendments changed what is now deemed discoverable information. “Parties cannot purposely ignore or recklessly fail to address the new proportionality requirements of Rule 26(b)(1),” Lange said. ” Fulton proves that courts simply will no longer tolerate such outdated and out-of-touch legal advocacy.”

While courts have been educating attorneys on proportionality, they also seek to fine-tune how Rule 37(e), concerning the preservation of ESI, is applied in discovery as well. Lange noted this has always been a challenging area for e-discovery law, especially given that “what is considered ‘proper preservation’ is a blurry line, often dependent upon a myriad of case-specific facts, which makes it ripe for courts to intervene and clarify when disputes arise.”

Lange expected this fine-tuning to continue in 2017 with “a steady stream of cases addressing reasonable steps to preserve, intent to deprive another party of relevant ESI, and the inherent power of the court to administer sanctions when ESI is lost.”

Though courts are offering guidance on how to more specifically preserve ESI, they have refrained from requiring parties to use TAR in the e-discovery process. In 2015, Lange said, courts “considered the parties’ TAR protocols and the desirable levels of transparency and cooperation required when using predictive coding.”

This year, however, “two key opinions, Hyles v. New York City and In re Viagra (Sildenafil Citrate) Products Liability Litigation, noted the efficiencies associated with TAR, but refused to compel or force a party to leverage the cutting-edge technology,” he added. “Instead, it was reiterated that a responding party is best situated to decide how to search for and produce ESI responsive to a document request.”