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Gibson, Dunn & Crutcher has released its latest report on electronic discovery, and, as usual, it’s must-reading for anyone who wants to keep pace with this unsettled area of the law. (We wrote about the firm’s last report in July.) This comprehensive analysis, based on a review of 323 decision, contains one surprising finding. Courts are imposing far fewer e-discovery sanctions: Last year they leveled sanctions in 55 percent of the cases where they were sought, compared to 70 percent in 2009. In absolute numbers, sanctions are dropping, too, from 62 in 2009 to 55 last year. On Friday we talked to three lawyers who worked on this report: Gareth Evans, the co-chair of Gibson Dunn’s Electronic Discovery and Information Law Practice Group, partner Jennifer Rearden, and of counsel Farrah Pepper. “What we’ve seen [in 2010] is a lot of courts are being more careful and examining the circumstances [before issuing sanctions],” said Evans. They’re requiring a showing that any lost electronic materials are not just relevant to the case but would have been prejudicial to the party that lost them, he said. “We’ve seen [this approach] even in the Southern District of New York, which is pretty important,” he added. Evans points out that not all courts in the Southern District are following Manhattan federal district court judge Shira Scheindlin’s controversial January 2010 ruling in the Pension Committe case (which we discussed last July). There she held that any failure to meet “contemporary standards” in e-discovery warrants an inference that lost information was both relevant and prejudicial to the requesting party, thus justifying sanctions. In Orbit One Communications v. Numerex, for example, a Manhattan magistrate judge issued a ruling last October declining to follow the Pension Committee standard. Evans noted that lawyers face often conflicting standards for the preservation of electronic materials, depending on their jurisdiction. “The fact that we don’t have uniform national standards for sanctions and preservation [of electronic material] is creating a lot of problems,” he said. The good news, he said, is that the Federal Civil Rules Advisory Committe is “making a big push” to amend the rules to provide more clarity. “We’re hoping to see before this summer a proposal for concrete rule amendments,” he said. (The committee meets again in April.) The report also examines e-discovery in the world of social media. Recent court rulings requiring the preservation of social networking data may serve as a “discovery equalizer” between individuals and companies, the firm suggests. “Individual users of social networking are now increasingly likely to face more onerous and complicated preservation obligations,” the report states. “Traditionally, companies have shouldered the brunt of the discovery burden and individuals have faced a comparatively light discovery burden, in terms of volume and complexity of the data sought. Social media may force a recalibration of this imbalance in the coming year.”

This story originally appeared in The Am Law Litigation Daily

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