Our Insights on eDiscovery

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eDiscovery Trends: Our 2012 Predictions
 eDiscovery Trends: Our 2012 Predictions 150 150 CloudNine

Yesterday, we evaluated what others are saying and noted popular eDiscovery prediction trends for the coming year. It’s interesting to identify common trends among the prognosticators and also the unique predictions as well. But we promised our own predictions for today, so here they are. One of the nice things about writing and editing a daily eDiscovery blog is that it forces you to stay abreast of what’s going on in the industry. Based on the numerous stories we’ve read (many of which we’ve also written about), and in David Letterman “Top 10” fashion, here are our eDiscovery predictions for 2012.

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eDiscovery Trends: 2012 Predictions – By The Numbers
 eDiscovery Trends: 2012 Predictions – By The Numbers 150 150 CloudNine

With a nod to Nick Bakay, “It’s all so simple when you break things down scientifically.” The late December/early January time frame is always when various people in eDiscovery make their annual predictions as to what trends to expect in the coming year. I know what you’re thinking – “oh no, not another set of eDiscovery predictions!” However, at eDiscovery Daily, we do things a little bit differently. We like to take a look at other predictions and see if we can spot some common trends. Ten sets of predictions in all! Here are the trends.

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eDiscovery Case Law: Defendants Not Required to Share Costs for Plaintiff’s Third Party Request
 eDiscovery Case Law: Defendants Not Required to Share Costs for Plaintiff’s Third Party Request 150 150 CloudNine

In Last Atlantis Capital LLC v. AGS Specialist Partners, the plaintiffs proposed that the defendants share in the cost of obtaining data that Plaintiffs subpoenaed from third parties. The court noted that all parties “involved herein are aware that the linchpin of this entire matter” was to obtain this audit trail data for analysis. The court had also previously suggested (at a September status conference) “in an effort to accelerate this protracted litigation” that it would be “reasonable” for Defendants to aid in half the costs. Nonetheless, the court rejected the plaintiff’s proposal for cost-sharing in this case, rejecting the plaintiff arguments for doing so.

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eDiscovery Trends: ARMA International and EDRM Jointly Release Information Governance White Paper
 eDiscovery Trends: ARMA International and EDRM Jointly Release Information Governance White Paper 150 150 CloudNine

A few months ago, the Electronic Discovery Reference Model (EDRM) and ARMA International announced that they would be collaborating on information governance guidelines for eDiscovery. It only took them a little over three months to release their first work product. On December 20 of last year, ARMA and EDRM announced the publication of a jointly developed white paper entitled, How the Information Governance Reference Model (IGRM) Complements ARMA International’s Generally Accepted Recordkeeping Principles (GARP).

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eDiscovery Year in Review: eDiscovery Case Law, Part 4
 eDiscovery Year in Review: eDiscovery Case Law, Part 4 150 150 CloudNine

As we noted the past three days, eDiscovery Daily has published 65 posts related to eDiscovery case decisions and activities over the past year, covering 50 unique cases! Yesterday, we looked back at cases related to discovery of social media. One final set of cases to review. The topic with the largest number of case law decisions (by far!) related to eDiscovery are those related to sanctions and spoliation issues (over a third of the total cases we reviewed). Here they are. As you’ll see, sanctions requested are not always granted. Then again, sometimes both sides get sanctioned!

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eDiscovery Year in Review: eDiscovery Case Law, Part 3
 eDiscovery Year in Review: eDiscovery Case Law, Part 3 150 150 CloudNine

As we noted the past two days, eDiscovery Daily has published 65 posts related to eDiscovery case decisions and activities over the past year, covering 50 unique cases! Yesterday, we looked back at cases related to privilege & inadvertent disclosures, proportionality and eDiscovery service disputes, including the notable McDermott Will & Emery eDiscovery malpractice case. But, we still have more cases to review. So, let’s keep going!

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eDiscovery Year in Review: eDiscovery Case Law, Part 2
 eDiscovery Year in Review: eDiscovery Case Law, Part 2 150 150 CloudNine

As we noted yesterday, eDiscovery Daily has published 65 posts related to eDiscovery case decisions and activities over the past year, covering 50 unique cases! Yesterday, we looked back at cases related to eDiscovery cost reimbursement, form of production and international discovery issues. But, there’s many more cases to recap. As Lt. Col Frank Slade would say, “I’m just getting warmed up”. Whoo Ah!

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eDiscovery Year in Review: eDiscovery Case Law, Part 1
 eDiscovery Year in Review: eDiscovery Case Law, Part 1 150 150 CloudNine

If 2012 is like recent years, there should be plenty of interesting developments in the eDiscovery industry. However, before we look ahead to the coming year, it’s worthwhile to look back at what transpired in 2011 to see what trends began to emerge last year. And, there is no better way to do that than to review key cases during the year. eDiscovery Daily has published 65 posts related to eDiscovery case decisions and activities over the past year, covering 50 unique cases! We grouped those cases into common subject themes and will review them over the next few posts. Perhaps you missed some of these? Now is your chance to catch up!

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eDiscovery Case Law: Court Grants Adverse Inference Sanctions Against BOTH Sides
 eDiscovery Case Law: Court Grants Adverse Inference Sanctions Against BOTH Sides 150 150 CloudNine

Have you ever seen the video where two boxers knock each other out at the same time? That’s similar to what happened in this case. In Patel v. Havana Bar, Restaurant & Catering, a case of dueling claims of spoliation, the court imposed sanctions against both parties for failing uphold their duty to preserve relevant evidence.

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eDiscovery Case Law: Plaintiff Not Required to Review Millions of Pages of Unallocated Space
 eDiscovery Case Law: Plaintiff Not Required to Review Millions of Pages of Unallocated Space 150 150 CloudNine

While plaintiff “should have known better than to agree to search terms” that arguably resulted in recovery from unallocated space files of 65 million pages of documents for plaintiff to review for privilege, a magistrate judge in I-Med Pharma, Inc. v. Biomatrix, Inc. properly excused plaintiff from its stipulation to produce such documents after reviewing them for privilege.

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