Gibson Dunn & Crutcher e-Discovery Statistics Reveal New Trends

In a July 2009 publication by Gibson Dunn & Crutcher (Gibson), the results of a review of more than sixty federal and state court opinions were released. And the results are very telling. Parties are bringing more e-discovery issues to the court, and the courts are awarding more sanctions. Also, it's not just civil parties, but also government entities that the courts are addressing with these obligations.

In the analysisof 61 cases, 32 (52%) of the opinions involved the consideration of sanctions, which were then awarded in 22 (69%) of the cases that considered sanctions. Many of the opinions address, or detail, duties to preserve relevant data and consequences of not doing so.

Not surprisingly, the courts continue to urge transparency and cooperation among counsel.

Prior to the now-well-known changes to the Federal Rules of Civil Procedure for e-Discovery, Shira Shindlin and Kanchana Wangkeo published "Electronic Discovery Sanctions in the Twenty-First Century". That paper outlined 66 Federal and State Court opinions between 2000 and 2004 and found that sanctions were awarded in 65% of the cases.

The quick conclusion is that the rate of sactions between 2004 and 2009 has increased slightly (69% versus 65%) but that the number of issues before the court has climbed dramatically from 66 in a four-year period to 61 in a six-month period. This is an increase of 740%!!

In Shindlin's study, adverse inference instructions were awarded 23% of the time. In Gibson's study they were awarded only 16% (5 times). This may indicate a willingness for courts to have parties work through the issues, or it may be too little to interpret.

Either way, Gibson's study sheds new light on the trends of 2009, and by comparison, the trends in a post-FRCP world. The two papers are still available on-line. Shindlin's paper is here:

Electronic Discovery Sanctions in the Twenty-First Century

Gibson Dunn's mid-year report is here:

2009 Mid-Year Update on E-Discovery Cases

One item that Gibson's study highlights is the increased cooperation sought by the courts. This was not addressed in Shindlin's paper. What is yet to be seen is how much this cooperation is increased by the work of groups such as the Sedona Conference, which has been promoting a paper on cooperation called the "Cooperation Proclamation" (disclaimer: I am a long-time member of the Sedona Conference). That paper, in it's public version, can be found here:

The Sedona Conference Cooperation Proclamation

This paper, the work of many different individuals on both sides of the bar, has been gaining dialog, if not traction, in relegating adversity between parties to the merits, not to the technologies.

It would be most interesting, and most valuable, if Gibson will put out a consolidated study at the end of 2009. I'm reluctant to call for such a publication because there was surely a lot of work involved in the current publication, but the value and the service to the community would be immense.

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Dan Regard is a Managing Director with Intelligent Discovery Solutions, Inc. He is a testifying expert on issues of e-Discovery and is also an editorial advisory board member of Law Technology News. he can be reached at dregard@idiscoverysolutions.com.