Last summer we reviewed Gibson Dunn’s 2010 Mid-Year Electronic Discovery Update. As it is now well into 2011, Gibson Dunn has released its 2010 Year-End Electronic Discovery and Information Law Update.
As we reported this summer, sanctions continued to be an issue in the second half of 2010 as “competing views of the standards that should apply to sanctions and preservation clashed in high-profile [cases].” According to Gibson Dunn’s report, the number of cases in which courts granted sanctions decreased from 70% in 2009 to 55% in 2010 as “…many courts appeared to evaluate sanctions requests more cautiously.”
Disagreements between parties surrounding e-discovery issues are nothing new. However, Gibson Dunn reports that in 2010, “…courts did not look kindly on parties that failed to work together reasonably….” One can only hope that, in 2011, firms keep courts’ expectations in mind and work together more judiciously.
Another win for 2010? According to the report, the use of clustering and other early document culling and filtering technologies increased in 2010. The widespread use of this technology will “[offer] some hope for decreasing the burden and expense of review.” As we are still recovering from hard economic hits in previous years, any means to save on costs is principal to firms’ e-discovery planning, so we can expect to see increased use of search technologies in 2011.
The biggest issue of 2010, according to the report, was “…the [increased] call for reform of the discovery process as it relates to ESI….” The Duke Conference of the federal Civil Rules Advisory Committee is working to solidify preservation and sanctions rules that will be uniform across all courts. “As virtually all cases now include an element of e-discovery,” according to Gibson Dunn, “we expect that it will not be too long before all 50 states will have adopted such rules.” Gibson Dunn expects that this could be accomplished as early as April 2011, when the Conference meets again.
We look forward to Gibson Dunn’s 2011 Mid-Year Report and will keep you updated on the results.