Ontrack, the leading provider of ediscovery, information
management, and data
recovery products and services, today announced its yearly analysis
of reported 2012 electronic discovery opinions and notable ediscovery
"Year over year, ediscovery issues evolve at the speed of light, and
2012 was no exception, with significant judicial opinions impacting the
electronically stored information landscape," said Michele Lange,
director of ediscovery thought leadership and industry relations, Kroll
Ontrack. "Across the entire electronic discovery reference model many
notable ediscovery trends emerged in 2012, but none promises to change
the status quo more than the line of opinions approving the use of
technology-assisted review. As courts in the last year progressively
embraced advanced technologies, such as TAR, opinions from the bench
showed increased scrutiny over procedural issues."
The numbers: sanctions cases (narrowly) stayed on top, but ediscovery
procedural disputes doubled
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:
Compared to 2011, cases addressing procedural issues more than doubled,
while cases addressing sanctions dropped by approximately 10 percent.
The judiciary devoted a considerable amount of attention to all elements
of litigants' discovery protocols in 2012, whether it was their
collection method, search protocols or cooperation with the opposition.
The judiciary's increased level of procedural scrutiny was best on
dispay in cases where the parties leveraged advanced technologies, such
as in Da Silva Moore v. Publicis Groupe, 2012 WL 607412 (S.D.N.Y.
Feb. 24, 2012), the first opinion to ever discuss and approve the use of
TAR. In Da Silva Moore, U.S. Magistrate Judge Andrew Peck and
U.S. District Court Judge Andrew Carter clearly noted that they were
primarily concerned with the overall results and defensibility of a
particular protocol, rather than the "black box" behind the technology.
Furthermore, Peck closed by stating that "counsel must design an
appropriate process," leveraging available technologies with adequate
quality control and testing in any ediscovery exercise. As litigants
grow increasingly tech-savvy, the judiciary will continue to review
counsels' procedures to ensure they have implemented an ediscovery
methodology that adequately accounts for the particular needs of the
The overall number of cases discussing sanctions edged procedural issues
just slightly in 2012 as the most discussed topic in ediscovery
opinions. Much of the discussion of sanctions in 2012 stemmed from
counsel trying to keep pace with proliferating data volumes, also known
as the "big data" problem. In Coquina Invs. v. Rothstein, 2012 WL
3202273 (S.D. Fla. Aug. 3, 2012), over 200 defense lawyers tasked with
collecting, reviewing and producing ESI constituted, in the eyes of the
Southern District of Florida, "a case of too many cooks spoiling the
broth," which further amounted to insufficient production, a finding of
gross negligence, and sanctions in the form of attorney's fees and
costs. Coquina, and cases like it, serve as cautionary tales,
evincing the fact that counsel must appropriately understand their
client's data before attempting to preserve or collect it.
Many ediscovery opinions discussing sanctions in 2012 revolved around
preservation and spoliation, yet courts were all over the map regarding
an appropriate preservation standard for ediscovery - especially in the
era of big data. In Chin v. Port Auth. of New York & New Jersey,
2012 WL 2760776 (2d Cir. July 10, 2012), the court diverged from the Zubulake
gold-standard, finding that failure to institute a litigation hold
did not constitute negligence per se. Instead, the court in Chin
favored a case-by-case approach, where the failure to preserve documents
was one of several factors considered to determine whether to issue
sanctions. However, many courts in 2012 stuck with the Zubulake
standard, such as Voom Holdings LLC v. EchoStar Satellite LLC,
2012 WL 265833 (N.Y. App. Div. Jan. 31, 2012), in which the court found
the defendant's failure to issue a litigation hold and suspend automatic
deletion of corporate e-mails before litigation commenced constituted
gross negligence and warranted severe sanctions.
Looking ahead: TAR goes mainstream while social media and cost
allocation case law keep developing
The judiciary's approval of TAR - also known as predictive coding,
intelligent review, machine learning or computer assisted review - was
the single biggest story to emerge in 2012 ediscovery case law. Prior to
2012, there was no reported opinion discussing the use of this
developing technology in document review. In 2013, courts will continue
to push this narrative as they fine-tune the most appropriate instances
and best practices for TAR adoption. Following the Da Silva opinion,
numerous courts issued opinions approving TAR, such as Global
Aerospace v. Landow Aviation in Virginia, No. CL 61040 (Vir. Cir.
Ct. April 23, 2012), and In re Actos (Pioglitazone) Products
Liability Litigation, 6:11-md-2299 (W.D. La. July 27, 2012). Like Da
Silva, both of these opinions approved TAR due to detailed
procedures that accounted for thorough training, sampling and quality
control to ensure defensible results. However, TAR opinions were not
limited to cases where it was proposed by one of the parties, as the
Delaware Court of Chancery recently ordered sua sponte that both
parties leverage TAR and share a vendor for an indemnity suit in EORHB
v. HOA Holdings, LLC.
Finally, in 2013, expect continued buzz regarding discoverability of
social media and ediscovery cost allocation - two salient topics in 2011
and 2012. Regarding social media, some courts, such as in Robinson v.
Jones Lang LaSalle Americas, Inc. allotted broad discovery of social
media data, finding that such data was useful in proving or disproving a
party's allegations. Conversely, the court in Mailhoit v. Home Depot
U.S.A. Inc., found that requests for social media data failed to
satisfy Fed. R. Civ. P. 34's "reasonable particularity" requirement and
denied the bulk of the requests. Similarly, when it comes to which party
pays for ediscovery costs, courts across the country have yet to settle
on a standard. Ediscovery cost allocation remains ripe for consideration
by the Advisory Committee on Civil Rules in 2013 when evaluating
amendments to the Federal Rules of Civil Procedure.
About the year in review research:Findings are based on 70
prominent ediscovery cases selected between January and December 2012.
Each opinion selected was summarized, categorized and added to an
ongoing database of ediscovery case law summaries, available at: http://www.krollontrack.com/resource-library/case-law/.
About Kroll Ontrack Inc.Kroll Ontrack provides
technology-driven services and software to help legal, corporate and
government entities as well as consumers manage, recover, backup,
search, analyze, produce and present data efficiently and
cost-effectively. In addition to its award-winning suite of software,
Kroll Ontrack provides data recovery, data backup, data destruction,
electronic discovery and document review. Kroll Ontrack is a subsidiary
an industry-leading provider of information solutions. For more
information about Kroll Ontrack and its offerings please visit: www.krollontrack.com.
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