Outtakes from the Gibson Dunn 2010 eDiscovery Update

Migrated from eDJGroupInc.com. Author: Greg Buckles. Published: 2011-01-20 09:00:10  Keeping track of eDiscovery decisions and untangling their relative scope, merit and potential applicability is not easy, even with eDiscoveryJournal’s search engines watching the web. Gibson Dunn has published their 2010 Year-End Electronic Discovery and Information Law Update covering 323 decisions, up over 60% from the 2009 eDiscovery decisions (200 cases). Besides calling out the report as a good resource, I wanted to comment on some of the statistics and specific cases.The report gives a good high level perspective on the judicial personalities, conflicts and agreements found in 2010’s top eDiscovery sanctions; Pension Committee, Rimkus and Victor Stanley. My take-away is that there is agreement on parties’ obligations to take documented, reasonable efforts to preserve ESI relevant to the matter, but a lot of gray area on issues of proportionality, scope and what level of sanctions are appropriate. There is a clear mandate to take action, but no single consensus between states and circuits to give firms and corporations confidence in their response workflows.The number of eDiscovery decisions (as chosen by Gibson Dunn) continues to grow at more than 50% per year from going back to 2008. However Gibson Dunn reports that the courts only granted sanctions in 55% of cases in 2010 as compared to 70% in 2009. I am really not sure how they got a 70% granting of sanctions in 2009 when their category chart has an average of 20% success. They do not give all the raw statistics and it is not obvious as to whether the sanction categories overlap between cases. If I interpreted the report correctly, eDiscovery sanctions filed more than doubled, with 131 cases with eDiscovery sanction motions in 2010 versus 62 in 2009. The format of the reported sanction percentages seems to have changed from last year, so I had to extrapolate the actual total number of sanction motion cases for 2010. If these overall counts seem small, I believe that is more a reflection of the reliance on searches of opinions published through online research databases such as Westlaw. I know that none of the cases that I did expert work on last year were reviewed, yet all of them had motions for eDiscovery sanctions. Still, we can use Gibson Dunn’s numbers to do some trend analysis and treat their numbers as a representative sample of published opinions.

 

 As you can see above the number of sanction decisions published is slowly rising, but the rates that adverse inference, termination and preclusion motions were awarded grew sharply. Maybe this is a reflection that some courts seem to shy away from big ticket monetary sanctions, but are not so hesitant to make strategic sanctions for perceived bad behavior. Gibson Dunn says, “Many courts evaluated sanctions requests more cautiously and required a showing that the missing documents would have been relevant and favorable to the party seeking sanctions.”  The concept that a party has to prove that missing documents would have been relevant seems to raise the bar beyond the reach of most plaintiffs. I do hope that the courts continue to weigh potential relevance and practical considerations when considering eDiscovery preservation and review disputes, but they should not be afraid to punish ESI destruction where willful neglect or deliberate acts are evident.The report covers a lot of ground and I encourage you to at least read the highlights on the first page. Just remember that it cannot encompass the large percentage of bench decisions and other unpublished motions from the federal and state courts. Treat it as a high level sample of published opinions, which are what you would be citing for arguments.