eDiscovery Daily Blog

• December 11, 2012

According to Kroll Ontrack, the percentage of eDiscovery cases addressing sanctions “dropped by approximately ten percent” compared to 2011, while “cases addressing procedural issues more than doubled”.  Let’s take a closer look at the numbers and look at some cases in each category.

As indicated in their December 4 news release, in the past year, Kroll Ontrack experts summarized 70 of the most significant state and federal judicial opinions related to the preservation, collection, review and production of electronically stored information (ESI). The breakdown of the major issues that arose in these eDiscovery cases is as follows:

• Thirty-two percent (32%) of cases addressed sanctions regarding a variety of issues, such as preservation and spoliation, noncompliance with court orders and production disputes.  Out of 70 cases, that would be about 22 cases addressing sanctions this past year.  Here are a few of the recent sanction cases previously reported on this blog.
• Twenty-nine percent (29%) of cases addressed procedural issues, such as search protocols, cooperation, production and privilege considerations.  Out of 70 cases, that would be about 20 cases.  Here are a few of the recent procedural issues cases previously reported on this blog.
• Sixteen percent (16%) of cases addressed discoverability and admissibility issues.  Out of 70 cases, that would be about 11 cases.  Here are a few of the recent discoverability / admissibility cases previously reported on this blog.
• Fourteen percent (14%) of cases discussed cost considerations, such as shifting or taxation of eDiscovery costs.  Out of 70 cases, that would be about 10 cases.  Here are a few of the recent eDiscovery costs cases previously reported on this blog.
• Nine percent (9%) of cases discussed technology-assisted review (TAR) or predictive coding.  Out of 70 cases, that would be about 6 cases.  Here are a few of the recent TAR cases previously reported on this blog, how many did you get?

While it’s nice and appreciated that Kroll Ontrack has been summarizing the cases and compiling these statistics, I do have a couple of observations/questions about their numbers (sorry if they appear “nit-picky”):

• Sometimes Cases Belong in More Than One Category: The case percentage totals add up to 100%, which would make sense except that some cases address issues in more than one category.  For example, In re Actos (Pioglitazone) Products Liability Litigation addressed both cooperation and technology-assisted review, and Freeman v. Dal-Tile Corp. addressed both search protocols and discovery / admissibility.  It appears that Kroll classified each case in only one group, which makes the numbers add up, but could be somewhat misleading.  In theory, some cases belong in multiple categories, so the total should exceed 100%.
• Did Cases Addressing Procedural Issues Really Double?: Kroll reported that “cases addressing procedural issues more than doubled”; however, here is how they broke down the category last year: 14% of cases addressed various procedural issues such as searching protocol and cooperation, 13% of cases addressed various production considerations, and 12% of cases addressed privilege considerations and waivers.  That’s a total of 39% for three separate categories that now appear to be described as “procedural issues, such as search protocols, cooperation, production and privilege considerations” (29%).  So, it looks to me like the percentage of cases addressing procedural issues actually dropped 10%.  Actually, the two biggest category jumps appear to be discoverability and admissibility issues (2% last year to 16% this year) and TAR (0% last year to 9% this year).

So, what do you think?  Has your organization been involved in any eDiscovery opinions this year?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.