Your E-Discovery GPS: Are You on the Right Track?

A question I am sometimes asked, and one which never fails to trigger an immediate onset of nervous ticks and twitches, is the question of what general direction most jurisdictions are moving in the majority of their important e-discovery decisions. Being the savvy readers that you clearly are, you can see that this question is riddled with grandiose generalizations and false presumptions from the start. Indeed, absent a starkly egregious example of bad faith or utter ignorance, as illustrated in Jamie Goetz-Anderson’s astute suggestion in her blog last week to regularly re-direct our attention to the misdeeds and lessons learned from Qualcomm, the process of identifying patterns and trends across the growing vault of e-discovery case law, particularly within the federal circuit, can be daunting and difficult at best.

While several accomplished groups attempt to make sense of the fray, I am always grateful to read Gibson Dunn’s annual updates, as they offer a comprehensive and thoughtful analysis of e-discovery case law, and, as expected, their 2010 Mid-Year Electronic Discovery and Information Law Update just published last week, did not disappoint.

Notably, to raise the specter of sanctions once again, while overall numbers are slightly down, sanctions are still granted in a statistically significant number of motions. Gibson Dunn’s findings revealed, “Of the 103 opinions Gibson Dunn analyzed, litigants sought sanctions in 30% (or 31)--compared to 42% in all of 2009--and received sanctions in 68% of those cases (or 21)--compared to 70% in all of 2009.” Among these sanctions granted, those most frequently awarded were for discovery dispute related costs and fees.

Perhaps even more interesting, however, was the discussion of how Judge Rosenthal and others have reacted to Judge Scheindlin’s recent and paramount Pension Committee decision, particularly surrounding determining what criteria must be present for adverse inference sanctions.

The Update goes on to highlight findings and trends in all of the core e-discovery areas you might expect, as well as current e-discovery buzzword areas of Cooperation, Proportionality, Employer/Employee Data Privacy and Social Networking, all of which combine to provide a much-needed “reset” of our collective E-Discovery GPS.

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