E-Discovery

For all of you evidence buffs, there are a couple of new studies about electronic discovery that might interest you. The broadest is a report prepared by attorneys with the Electronic Discovery and Information Law Practice Group of the law firm Gibson, Dunn & Crutcher, LLP. Titled "2010 YEAR-END ELECTRONIC DISCOVERY AND INFORMATION LAW UPDATE," this report includes e-discovery news and a discussion of case law based on a review of 323 decisions from the past year. From the study, here is a very brief description of its highlights:

Calls for Reform Reach Crescendo. Sanctions Granted Less Frequently. Government's Duties Clarified. No Reasonable Expectation of Privacy In Social Media.

The second study, about e-discovery sanctions, is discussed in a Duke Law Review article by three attorneys from the Discovery Center of law firm King & Spalding. Here is its abstract:

This Article reviews our comprehensive survey of written opinions from cases in federal courts prior to January 1, 2010, involving motions for sanctions relating to the discovery of electronically stored information (ESI). We analyzed each case for various factors, including date, court, type of case, sanctioning authority, sanctioned party, sanctioned misconduct, sanction type, sanctions to counsel, if any, and the protections provided from sanctions by Federal Rule of Civil Procedure 37(e). The survey identified 401 sanction cases and 230 sanction awards and showed that sanction motions and awards have increased over time, particularly in the last five years. Sanctions against counsel are rare but are also increasing. Sanction motions have been filed in all types of cases and in courts across the country. Failure to produce ESI is the most common basis for sanctions. Courts have used a variety of different rules, statutes, and powers to sanction parties for e-discovery violations, including Rule 37 and the inherent power of the court, and courts impose many different sanction types on e-discovery violators, including the severe sanctions of dismissal, default judgment, adverse jury instructions, and sizeable monetary awards. Rule 37(e) has not provided broad protection from such sanctions.

Dan H. Willoughby, Jr., et al., Sanctions for E-Discovery Violations: By the Numbers, 60 Duke L. Rev. 789 (2010).