Our Insights on eDiscovery

With cases related to preservation and spoliation issues continuing to be prevalent, as well as continued greater emphasis on proportionality in eDiscovery, the Advisory Committee on the Federal Rules of Civil Procedure has requested comments on possible changes to the federal rules relating to preservation and spoliation of evidence. Much of the framework for the proposed rules was derived from Judge Shira Scheindlin’s opinions on eDiscovery, particularly those in the Zubulake case. These changes could be finalized as soon as December 2013.

We’ve published a few studies and surveys regarding the state of the eDiscovery industry, including this one from last week and this one from last fall. Another industry review was published just last month by VRA Partners, an investment banking firm based in Atlanta, GA.

On Dec. 8 of last year, the U.S. District Court for the District of Delaware revised the “Default Standard for Discovery, Including Discovery of Electronically Stored Information (ESI)” for the third time to reflect recent changes in technology and to address concerns of attorneys regarding the discovery of ESI. The new Default Standard expects the parties to reach agreements cooperatively on how to conduct discovery under Fed. R. Civ. P. 26-36. If the parties are unable to agree on the parameters and/or timing of discovery, the default standards will apply until further order of the Court or the parties reach agreement (which is why it’s a default standard).