Legal teams and judges faced a complex and ever-changing E-discovery landscape in 2011.  Here are some of the trends I noted throughout the year:

(1) In the midst of the trend of outsourcing e-discovery, a consistent and robust QC workflow is crucial. Performing the QC  ensures attorneys are accurately reviewing outsourced work and protects clients from future liability.   In J-M Manufacturing Company, Inc v. McDermott Will & Emery, J-M Manufacturing  sued its legal counsel, McDermott Will & Emery for e-discovery legal malpractice, on the grounds that they produced 3,900 privileged documents in a pending lawsuit.  Given the chance of future liability for producing privileged information to the other side, it makes sense to perform QC during all the phases of the electronic discovery process from initiation to completion.

(2) Lawyers should add claw back provisions to their standard lists of items that they consider in every case. Someday, when you inadvertently disclose a privileged document, you’ll be glad that you put Rule 502 claw back provisions on your list of items to consider in every case.  See Claw back – Trick or Treat, posted November 2, 2011.

(3) Counsel should not agree to search terms without knowing the sources of potentially relevant information.  For example, in I-Med Pharma, Inc. v. Biomatrix, Inc. No. 03-3677 (DRD), 2011 6140658 (D.N.J. Dec 9, 2011) the court affirmed the order of the Magistrate Judge excusing Plaintiff from the obligation of reviewing and producing millions of pages of documents recovered from unallocated space files.  The search terms agreed upon by the parties were not targeted to document custodians, relevant time periods or databases.  For these reasons, the Court found the burden of the review would outweigh any potential benefit and likelihood of finding relevant admissible evidence.

(4) Attorneys should be specific when making discovery requests.  In Dartnell Enterprises, Inc. v Hewlett-Packard Co., the Defendant Hewlett-Packard was ordered to produce responsive documents in their native electronic  format despite its production of hard copies of those documents.  The court made this determination because the disclosure requests by Plaintiff specifically requested that ESI be provided as part of the production.   The Defendant did not present any valid basis or reason for not complying with the disclosure requests in an electronic format.  Consequently, the Defendant was required to produce the requested documents in their native electronic format, including any metadata as well as a an index to the electronic files identifying the document produced in response to each demand.

(5) In 2011, the majority of the reported judicial opinions addressing electronic discovery focused upon sanctions.  In those cases, the sanctions were issued for preservation and spoliation issues.  The second most opined upon issue in e-discovery was cases addressing various procedural issues like searching protocol and cooperation.

I am looking forward to finding out the trends and issues in E-Discovery in 2012.  Keep reading!!!!