Gibson Dunn has released its 2011 Mid-Year E-Discovery Update and reports that cases involving e-discovery are on the rise. In fact, e-discovery decisions have gone up by a remarkable 82% percent since mid-year 2010. Because litigation is increasingly widespread, more parties are seeking sanctions against opposing counsel for e-discovery negligence than ever before, for example the Thorncreek Apartments III, LLC v. Village of Park Forest case we wrote on last week. Another reason for the doubling of sanctions sought is that parties are more aware that they can benefit from opposing counsel’s mistakes and are taking advantage of this opportunity. Despite this upward swing courts are still awarding sanctions at a rate a little over 50 percent.
Legal holds are also being debated on many levels. There are varying opinions on whether the notice can be oral or must be written and if the promptness of issue affects data preservation. Perhaps the most interesting questions being posed are those regarding hold protocol for social media. For example, should traditional privacy rights apply when collecting data from social media sources? So far most courts have held that they do not.
Gibson Dunn also brought up one of the year’s most interesting cases: National Day Laborer Organization Network v. U.S. Immigration & Customs Enforcement Agency. In response to a Freedom of Information Act (FOIA), Judge Scheindlin stated the government was obligated to preserve and produce metadata. Four months later she reneged on her decision. Gibson Dunn speculates that, despite Judge Scheindlin’s change of mind, when dealing with ESI both courts and litigants will reference her rulings on metadata’s importance in all productions.
In conclusion, the Mid-Year Update says that it is too early to tell whether there will be much conclusive e-discovery reform in 2011, but today the Civil Rules Advisory Committee meets in Dallas to discuss potential changes. We will keep you posted.