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Thursday, December 10, 2015

2015 Ediscovery Case Law: Preservation, Proportionality and Production

MINNEAPOLIS – December 10, 2015 – Duty to preserve, emphasis on proportionality and reasonable form of production dominated this year’s ediscovery judicial opinions as courts prepared for the December 1, 2015 amendments to the Federal Rules of Civil Procedure (FRCP). Yearly analysis of reported ediscovery opinions and notable ediscovery themes are highlighted in the 2015 Top Ediscovery Cases by Kroll Ontrack, the leading provider of ediscovery products and services.

In the past year, Kroll Ontrack experts summarized 55 significant state and federal judicial opinions from 2015 related to the discovery of electronically stored information. Five major categories arose most commonly in these opinions:

  • 35 percent of opinions dealt with disputes over production and the methods used
  • 20 percent of opinions focused on preservation and spoliation, including when the duty to preserve is triggered
  • 16 percent of opinions addressed cost considerations, such as cost shifting and taxation of costs
  • 16 percent of opinions discussed procedural issues, such as search and predictive coding protocols, cooperation and privilege
  • 13 percent of opinions issued orders regarding sanctions for spoliation or failure to produce

“Kroll Ontrack has been researching and analyzing salient ediscovery case law for over a decade, and it’s clear that ediscovery practices have progressed significantly during that time,” said Michele Lange, director of thought leadership, Kroll Ontrack. “One of the best ways to keep up to date on evolving ediscovery practices is to monitor what judges are saying when confronted with ediscovery issues in cases. On the cusp of FRCP amendments, courts dealt with many key issues – what data needs to be preserved, the amount of discovery reasonably needed in a case and what happens when ESI is lost or destroyed. As these scenarios play out and as courts grapple with the impact of the new rules, 2016 has the potential to be momentous.”

Trends in 2015 Case Law

Proportionality requires finding the middle ground when it comes to scope of discovery

Comprising 35 percent of ediscovery cases this year, production issues dominated judicial opinions, with courts analyzing scope of discovery, proportionality issues and production format. For example, in Webb v. Ethicon Endo-Surgery, the plaintiff wanted a broader scope and additional discovery requests, while the defendant moved for a narrower scope. Ultimately, the court took into account the “expense, burden, and likely benefit” when considering the scope of discovery.

When it comes to preservation, reasonableness and an effective legal hold are paramount

Twenty percent of ediscovery cases this year specifically addressed preservation and spoliation issues, with the vast majority of opinions focusing on how and when to utilize a legal hold. In HM Electronics, Inc. v. R.F. Technologies, Inc., the defendants did not engage in reasonable steps to preserve ESI, nor engage in any basic attempts to implement a litigation hold once litigation was imminent. Further, citing the June 30, 2015 State Bar of California ediscovery ethics opinion, the court found that the defendants’ counsel did not supervise employees and inform attorneys about the need to follow data collection and preservation processes, and thus even though a vast amount of data was produced, a critical amount of highly relevant data was deleted.

Predictive coding is critical to an effective document review

Search protocols, cooperation and privilege issues represented 16 percent of the ediscovery cases in 2015, with judges reiterating the benefits and importance of utilizing predictive coding and other ediscovery search methods to winnow discovery sets. Specifically with respect to predictive coding, Magistrate Judge Peck issued the most prominent predictive coding opinion of 2015. In Rio Tinto PLC v. Vale S.A, Judge Peck conclusively stated that, due to “[T]he interest within the ediscovery community about TAR cases and protocols…[I]t is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it.”

In the complex world of ediscovery, cost allocation issues endure

With 16 percent of opinions addressing ediscovery costs, including cost shifting and taxation of costs, 2015 witnessed a persistent appreciation for the expense parties must bear to review and produce ESI. For example, as in years past, several opinions discussed taxation of costs for retrieving or converting ESI under 28 U.S.C. § 1920. In Comprehensive Addiction Treatment Ctr. v. Leslea, the court determined the necessity of ESI production, which led to an award of discovery costs for the producing party. Similarly, in Colosi v. Jones Lang LaSalle Americas, Inc., the 6th Circuit determined that the defendant’s computer hard drive imaging was necessary, and thus taxation of costs was rightfully awarded to the defendant as the prevailing party on the merits in the underlying wrongful termination suit.

Courts address appropriate sanctions when parties fail to produce data

Sanctions cases represented 13 percent of 2015 ediscovery opinions, with the most recurrent sanction opinions addressing the reasonableness of the parties’ efforts to comply with discovery. For instance, in Parsi v. Daioleslam, sanctions were imposed because of the plaintiff’s failure to produce data without explanation. However, in United Corporation v. Tutu Park Ltd., Inc., a good faith effort to comply with large production requests defeated a motion for sanctions without further attempts to meet and confer about document scope.

For more information about the 2015 ediscovery case law research from Kroll Ontrack, visit: www.ediscovery.com/2015TopEdiscoveryCases/.

About Kroll Ontrack LLC
Kroll Ontrack provides technology-driven services and solutions to help legal, corporate and government entities as well as consumers manage, recover, search, analyze, review and produce data efficiently and cost-effectively. In addition to its award-winning suite of software, Kroll Ontrack provides data recovery, data destruction, electronic discovery, consulting and document review. For more information about Kroll Ontrack and its offerings please visit: www.ediscovery.com or follow @KrollOntrack on Twitter.

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Media Contact: Kristin Husom, 952-516-3781, khusom@krollontrack.com