2013 Case Law: “Back to Basics” Approach Gave Us Something to Chew On

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back to basics

2013 for ediscovery “was a very good year.” The courts’ unified message was simple (showing a renewed interest proportionality and cooperation), clear (attorneys in 2013 must know ediscovery), and even a bit provocative (see Sekisui). Considering that a bold and active judiciary is absolutely necessary to bring these elusive principles to life, I’m not even mad that the judiciary may have been listening to Ol’ Blue Eyes before Thanksgiving.

Attorneys are finally realizing that palpable value lies in fostering cooperation and proportionality by chasing carrots like reduced motion practice and less “discovery about discovery.” At the very same time, however, we’ve seen courts return to tried and true sticks like 26(g) as a vehicle for sanctions, all while making sense of the spoliation rulemaking quagmire playing out at the federal level.

Overall, Kroll Ontrack summarized more than sixty significant ediscovery opinions. Here are the topics those opinions focused on, by percentage:

  • 28% of case revolved around Preservation and Spoliation of ESI, including when the duty to preserve is triggered
  • 23% of cases had to do with Production of ESI for discovery disputes and the methods used
  • 18% of cases address Sanctions for spoliation, production disputes and noncompliance with court orders
  • 18% looked at Procedural Issues such as search protocols, cooperation and privilege
  • 13% dealt with Costs such as shifting and taxation of costs

Notable ediscovery opinions from 2013 will prove most important as efforts to amend the Federal Rules of Civil Procedure progress through 2014. Many of these cases provided standards that either aligned with the proposed rules or further fueled the debate over the proposed language to key amendments.