The new edition of Gibson Dunn’s annual “Year-End E-Discovery Update,” covering case law developments and industry trends from 2017, is now available
On January 18, 2018, Gibson Dunn released its “2017 Year-End E-Discovery Update.” For almost a decade, Gibson Dunn’s Electronic Discovery and Information Law Practice Group has produced this annual year-in-review report (and, in some years, a “Mid-Year E-Discovery Update” as well). Each year, it provides practitioners with one of the best overviews of new case law, evolving best practices, and industry trends.
This year’s report discusses developments related to: spoliation sanctions; proportionality; possession, custody, or control; discovery of social media; technology-assisted review; and, eDiscovery service providers.
The Update has the most to say about spoliation sanctions and how things have continued to evolve since the December 2015 amendments to Federal Rule of Civil Procedure 37(e). The Update reviews cases from 2017 that illustrate the amended rule’s general effectiveness in limiting and standardizing the application of sanctions for preservation failures, but it also notes that some courts still fail to reference or apply it. Finally, it discusses (as we did last year) that some courts have continued to draw on inherent authority for the application of spoliation sanctions, despite the amendments’ intention to foreclose that option.
On proportionality, the Update observes several of the same developments we covered in our series of blog articles on proportionality since the December 2015 rule amendments: proportionality is being taken seriously by courts as a limit on the scope of discovery; proportionality determinations are highly fact-specific; and factors other than money can matter more than the money, depending on the circumstances.
On possession, custody, or control, the Update notes the persistence of the same jurisdictional split we touched on in our series on legal holds and our series on mobile device discovery: some courts define the scope of control as ending at a “legal right” to obtain, while others extend the scope of control to a “practical ability” to obtain.
On discovery of social media, the Update observes several of the same developments we covered last year in our series on social media in eDiscovery: social media usage has grown too vast to be ignored as a source; courts are increasingly treating it as other more traditional sources; and overbroad requests and personally-invasive fishing expeditions are not permitted.
On technology-assisted review (“TAR”), the Update observes a continuing increase in the use of TAR for both preparing and reviewing large productions, but it notes that use mostly remains confined to those larger-volume matters. Only two noteworthy cases were identified on the subject from 2017: one involving questions of methodology and transparency resolved through an in camera review of a challenged TAR process; and one making a general statement of preference for TAR to be applied before any search terms rather than after.
On vendor developments, the Update describes continued market consolidation driven by private equity-funded mergers and acquisitions. The Update describes the market as settling into four categories of providers:
. . . (1) large vendors with a national and often international footprint providing basic, commodity services using mostly standard technologies; (2) medium-sized vendors—also with a national and global footprint—focused on providing both expert e-discovery consulting and professional services as well as standard and more advanced technologies; (3) vendors of “do it yourself” online e-discovery software services (i.e., “SAAS,” aka software as a service), usually targeted at small and medium-sized law firms that now, increasingly, must deal with e-discovery; and (4) traditional local and regional vendors providing basic services, much as they have in the past.
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