Year over year, e-discovery issues evolve at the speed of light, and 2012 was no exception, with significant judicial opinions impacting the electronically stored information (ESI) landscape. In the past year, Kroll Ontrack summarized and categorized 70 of the most significant state and federal judicial opinions related to the preservation, collection, review and production of ESI. E-discovery issues arising in these cases were apportioned as follows:
- 32 percent of cases addressed sanctions for, spoliation, and production disputes and noncompliance with court orders
- 29 percent of cases addressed procedural issues, such as search protocols, cooperation, production and privilege considerations
- 16 percent of cases addressed discoverability and admissibility issues
- 14 percent of cases discussed cost considerations such as shifting and taxation of costs
- 9 percent of cases discussed TAR or predictive coding
The year in review: Case law analysis
Compared to 2011, cases addressing e-discovery procedural issues more than doubled. The judiciary devoted significant attention to all elements of litigants’ discovery protocols in 2012, but the increased level of procedural scrutiny was best on display in cases where parties leveraged advanced technologies, such as Da Silva Moore v. Publicis Groupe—the first line of opinions to ever discuss and approve the use of technology-assisted review (TAR). In Da Silva Moore, U.S. Magistrate Judge Andrew Peck and U.S. District Court Judge Andrew Carter noted that their primary concern was the defensibility of the method implemented, rather than the “black box” behind the technology. Furthermore, Peck closed by emphasizing that “counsel must design an appropriate process,” leveraging available technologies with appropriate quality control testing.
Although the total number of cases discussing sanctions dropped by approximately10 percent in 2012, it was still the most oft-discussed topic. Many of the disputes addressing sanctions in 2012 stemmed from counsel trying to keep pace with proliferating data volumes in the “big data” era. For example, in Coquina Invs. v. Rothstein, more than 200 defense attorneys tasked with collecting, reviewing and producing ESI constituted “a case of too many cooks spoiling the broth” resulting in insufficient production, a finding of gross negligence and sanctions in the form of attorney’s fees and costs. Coquina, and cases like it, should serve as cautionary tales evincing the importance of understanding a client’s data before attempting to preserve or collect it.
Many opinions discussing sanctions in the past year revolved around spoliation, yet courts were all over the map regarding an appropriate e-discovery preservation standard. In Chin v. Port Auth. of New York & New Jersey, for example, the court diverged from the Zubulake standard, finding that counsel’s failure to institute a litigation hold did not constitute negligence per se. Instead, the court in Chin favored a case-by-case, factor-based approach to determine whether spoliation occurred. However, many opinions stuck with the Zubulake standard, including Voom Holdings LLC v. Echostar Satellite LLC, in which the court found the defendant’s failure to issue a litigation hold to suspend deletion of emails constituted gross negligence and warranted severe sanctions. As data volumes continue to proliferate, expect courts to evolve their litigation hold procedures for years to come.
Looking ahead: Trends on the horizon
The judiciary’s approval of TAR—also known as predictive coding, intelligent review, machine learning or computer assisted review—was the single biggest story to emerge in 2012 case law. In 2013, expect courts to continue pushing this narrative as they fine-tune the most appropriate instances and best practices for TAR. Following the Da Silva Moore opinion, numerous courts issued opinions approving TAR, such as Global Aerospace v. Landow Aviation in Virginia, and In re Actos (Pioglitazone) Products Liability Litigation in the Western District of Louisiana. Like Da Silva Moore, both of these opinions approved TAR due to detailed procedures that accounted for thorough training, sampling and quality control to ensure defensible results. Additionally, TAR opinions were not limited to cases where it was proposed by one of the parties, as the Delaware Court of Chancery recently ordered sua sponte that both parties leverage TAR and share a vendor for an indemnity suit in EORHB v. HOA Holdings, LLC.
Finally, in 2013 expect continued buzz regarding discoverability of social media and e-discovery cost allocation—two salient topics in 2011 and 2012. Notably, courts diverged significantly on the discoverability of such data, with some jurisdictions allotting broad discovery and others applying a narrower standard under Rule 34’s “reasonable particularity” provisions. Similarly, when it comes to which party pays for e-discovery costs, courts across the country have yet to settle on a standard, and e-discovery cost allocation remains ripe for consideration by the Advisory Committee on Civil Rules in 2013 when evaluating amendments to the Federal Rules of Civil Procedure.
Going forward, in-house counsel should continue to closely monitor case law developments, legislation and scholarly commentary on these and other cutting-edge ESI issues to keep pace with the ever-changing world of e-discovery.