If you reviewed Kroll Ontrack’s annual press release, attended our “year in review” webinar, and read our wrap-up about my recent Google+ Hangout with numerous ediscovery experts, you probably have a pretty good handle on ediscovery in 2013.
While there is significant value in knowing the latest trends in ediscovery case law, I’m reminded of one of my favorite law school professors who always stressed that I try to see the forest for the trees. In other words, the cases observed this year are most valuable when taken in context of opinions from years past to discern trends and changes in the rapidly-evolving world of electronic discovery.
Over the past six years, ediscovery has changed a lot, and case law reflects some of those changes. Let’s take a quick look at some of the trends from 2008 to present:
Sanction disputes remain (relatively) constant as preservation and spoliation standards remain in flux – from 2008 to 2013, opinions about sanctions have, on average, accounted for over 20 percent of the cases summarized by Kroll Ontrack. Cases discussing preservation and spoliation—the two topics most frequently related to sanctions—have seen a significant jump over the past two years. These are tricky subjects, and numerous courts—most recently and notably in Sekisui Am. Corp. v. Hart—tend to apply standards that vary by the facts of the case and the judge. As courts continue to interpret common law and apply varied analyses with regard to preservation, spoliation, and sanctions, this number will likely remain somewhat constant. Although the proposed amendments to the Federal Rules of Civil Procedure aim to provide more clarity with regard to spoliation, public support for this change is anything but uniform and we could still be years away from actually amending the Rules.
Cases discussing production have tailed off – the number of cases focusing on production disputes peaked in 2009, where the topic accounted for 41 percent of Kroll Ontrack’s case summaries. Since then, that number has declined fairly steadily, with a slight uptick in 2013. The heavy number of production disputes from five years ago likely stemmed the rising challenges producing additional mediums in big data. The post-2009 decline was likely a product of savvier practitioners and judges meeting those challenges head-on.
Procedural Disputes expand – opinions focusing on search methodologies saw the most notable increase in 2012, where they accounted for a larger majority of the cases summarized. As new technologies like predictive coding rose to prominence in 2012, the courts showed a heightened interest in the finer details of search methodologies to determine whether they were reasonable. In 2013, many of these questions were resolved under the framework of a proportionality analysis, which might prove more popular as proposed amendments make greater reference to this bedrock discovery principle.
Cost Concerns rise and stay steady – cases discussing ediscovery costs truly rose to prominence in 2010, and cases such as Race Tires Am., Inc. v. Hoosier Racing Tire Corp. typified one side of the lingering debate about which costs related to ediscovery were recoverable. While courts remain relatively split over whether ediscovery is the modern equivalent of “exemplification” or “making copies” under 28 U.S.C. § 1920 (4), this subject will likely receive greater attention from the judiciary as litigants try to make sense of the existing standards. In fact, many peers in my recent Google+ Hangout believe this topic should receive greater attention as the existing channels to recover costs are far too limited.
As we look ahead to the future of ediscovery, understanding where we are and where we’re going is tremendously important to successfully navigating the pitfalls of unstructured data, rising litigation costs, and a litany of other concerns unique to this field of practice.