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December 07, 2012

Kroll Study Finds Signs of E-Discovery Savvy

Laptop_briefcase400Are in-house and outside counsel in corporate cases getting better at e-discovery?

In a recent article in Corporate Counsel, Sue Reisinger finds good news for corporate attorneys in Kroll Ontrack's yearly analysis of e-discovery opinions, particularly in its numbers on sanctions: they’re down this year, from last. Kroll's numbers are drawn from a selection of 70 state and federal e-discovery cases between January and December 2012, which are summarized, categorized and added to a database of e-discovery case law on Kroll's website.

The numbers on sanctions do look promising, with 32 percent of cases analyzed addressing sanctions for preservation and spoliation issues, noncompliance with court orders, and disputes over production — a 10 percent drop from last year's survey.

As the case breakdown continues in a release from Kroll:
• 29 percent of cases address procedural issues, such as search protocols, cooperation, production and privilege;
• 16 percent address discoverability and admissibility;
• 14 percent of cases discuss cost-shifting or taxing e-discovery costs; and
• 9 percent discuss predictive coding.

In the year of da Silva Moore, Global Aerospace, and In re Actos, that last percentage shouldn't come as a surprise. And most e-discovery watchers inside and outside of the industry expect that figure to rise.

Big data played a role in sanctions in one case logged by Kroll, Coquina Invs. v. Rothstein. 200 defense lawyers collecting, reviewing, and producing ESI were deemed "too many cooks spoiling the broth" by the Southern District of Florida, finding gross negligence for insufficient production and ordering the grossly negligent to pick up attorneys fees and costs.

Studies like this can be a bellwether of sorts, but with the method of analysis decidedly unscientific, how true a picture of the state of e-discovery in the courtroom are we presented with?

If we listen to a panel of magistrate and district judges' own case law update at the Georgetown Law Advanced E-Discovery Institute, there's still room to grow. As reported by LTN's Monica Bay, e-discovery notables John Facciola, Paul Grimm, Andrew Peck, Shira Scheindlin, and Xavier Rodriguez, in a discussion moderated by Sedona Conference stalwart Ken Withers, saw a need for improvement in meet and confers, in lawyers educating themselves on their technological options, and in setting realistic e-discovery protocols.

Image by S. Diddy

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