Gibson Dunn posted its 2010 Mid-Year Electronic Discovery and Information Law Update last week. The update “provides an overview of recent e-discovery developments and trends…between January 1 and June 17, 2010.” According to the report, both federal and state courts are actively issuing e-discovery opinions, which follows a trend from 2009.
Courts are also “[taking] an active role in providing more guidance and certainty to e-discovery practitioners,” according to Gibson Dunn. This new role is evidenced in the Electronic Discovery Pilot Program in Illinois, which is outlined in this blog.
As a growing trend, sanctions have been levied “on outside counsel for failing to adequately supervise a client’s collection and preservation of [ESI].” Interestingly though, if an attorney failed but was able to prove they made every effort to meet discovery expectations, they avoided sanctions.
In terms of preservation, Gibson Dunn notes that courts have started insisting on preservation of “outlier ESI,” which includes all electronic information, not just email. Gibson Dunn also pointed out that, in a “maturation of e-discovery law, courts this year have stated that…what is reasonable will be judged…according to ‘clearly established applicable standards…which have been set by years of judicial decisions;’” rather than in a “fact-specific manner,” as was done previously.
The report shows that there is not yet a consistent trend in determining the treatment of search methodologies. Gibson Dunn notes that several courts have “refused to compel productions where the requesting party could not justify its proposed search terms.” Gibson Dunn’s report also outlines a case in which a party was sanctioned because it “refused to ‘reasonably narrow’ document requests through specified search terms.” However, some courts are not “[taking] an active role in the design of search terms or specific search methodology.” One court cited “the wilderness of keyword search usage” as a refusal to deciding a party’s search terms.
Courts’ tendencies in determining privilege leaned toward following the 2008 Federal Rule of Evidence 502, which “[provides] uniform rules governing the waiver of attorney-client privilege and work product protection due to inadvertent disclosure of privileged communications.”
With communication technology and social media becoming more prevalent in society, courts must decide how to rule on these new forms of ESI. One issue Gibson Dunn noted is “whether employees have a reasonable expectation of privacy in their electronic communications.” This issue is further outlined in this blog, about a SWAT-team member’s text message privacy on a city-issued pager. Gibson Dunn also directly references trends in social media stating, “Courts…acknowledge that discovery from social networking sits may carry different privacy concerns than traditional discovery.” They also predict that courts may soon require preservation and search of ESI from social networking sites.
E-discovery trends extend internationally, Gibson Dunn notes, with “United States courts compelling cross-border discovery from both parties and non-parties, even where foreign law bars production of the information.” A recent case involving Gucci is evidence of this growing trend.
As we enter the second half of 2010, these trends will become more established in the court system. For more information, look out for Gibson Dunn’s 2010 Year-End Report.