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KMK's 2014 E-Discovery Year in Review

Hello and Happy New Year E-Discovery aficionados!  Welcome to KMK’s 2014 year in review E-Discovery round-up.

Amendments to the FRCP
With many significant goings-on in the E-Discovery world this past year, it’s difficult to know where to even start. I assume a logical recap would begin with a look at the Proposed Amendments to the federal Rules of Civil Procedure, specifically Rule 37(e), since this is a subject upon which many in 2014 wished to opine, and with great diversity! The resultant proposed amendments are an amazing testament to the practices and procedures we have in place, and to the overall greatness of our judicial system. If congress takes no further action, the amendments will go into effect December 1, 2015.

Notable Caselaw
This year we were treated with some significant decisions from the court.  Among some of the most noteworthy decisions this year are: Brown v. Tellermate Holdings Ltd., 2014 U.S. Dist. LEXIS 90123, 2014 WL 2987051 (S.D. Ohio July 1, 2014) for court’s address of preservation and spoliation issues; Dynamo Holdings L.P. v. Comm'r, 2014 U.S. Tax Ct. LEXIS 40, 143 T.C. No. 9 (T.C. Sept. 17, 2014) for the court’s finding on the usability of Technology Assisted Review and Painter v. Atwood, 2014 U.S. Dist. LEXIS 35060 (D. Nev. Mar. 18, 2014) which showcased the court’s understanding of social media and counsel’s duty to preserve, counsel’s unfamiliarity with ESI issues notwithstanding. Other notable decisions were Good v. Am. Water Works Co., 2014 U.S. Dist. LEXIS 154788 (S.D. W. Va. Oct. 29, 2014) for the court’s nuanced endorsement of predictive coding for privilege review, the Bridgestone Ams., Inc. v. IBM, 2014 U.S. Dist. LEXIS 142525 (M.D. Tenn. July 22, 2014) decision which allowed parties to “change horses mid-stream” and use predictive coding despite a previously agreed to case management order; the Progressive Cas. Ins. Co. v. Delaney, 2014 U.S. Dist. LEXIS 69166, 2014 WL 3563467 (D. Nev. May 19, 2014) decision, which dealt with a similar issue, but held that the producing party should not veer from the original production agreement; and the thoroughly unpacked and lengthy decision in the In re Actos® (Pioglitazone) Prods. Liab. Litig., 2014 U.S. Dist. LEXIS 86101, 2014 WL 2921653 (W.D. La. June 23, 2014) matter as it applies to the implementation of sanctions for the intentional spoliation of ESI. There were many others, but these are the decisions that seemed to stand out this past year.

There were some notable losses this year; the bar, with the passing of Browning Marean and Richard Braman, and the bench with the retirement of the Honorable John M. Facciola. By all accounts, Judge Facciola will still have much to contribute to the bar, as will both Browning Marean and Richard Braman in their own respects, due to the following of their enduring legacy by countless current and future eDiscovery practitioners.

The Year Ahead
What 2015 holds in-store for E-Discovery is still yet to be seen, however there are some emerging trends.  One of which seems to be the ever increasing importance of the “Internet of Things” – that is: gathering evidence from our toasters/refrigerators/washing machines, etc. to support fact patterns based on existing evidence. Another trend, due to such factors as preservation, spoliation and the need to tame “big data,” is an increased awareness of the importance of Information Governance. Perhaps nothing in the past year exemplifies that trend more than Microsoft’s acquisition of Equivio!  However 2015 turns out, here’s wishing you a happy, prosperous and E-Discovery filled New Year! 

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