Press Release

Thursday, December 8, 2016

2016 Ediscovery Case Law: New FRCP Amendments Drive 60 Percent Increase in Proportionality Opinions

MINNEAPOLIS – December 8, 2016 – Strong emphasis on proportionality and scope of discovery dominated this year’s ediscovery judicial opinions (56 percent as compared to 35 percent in 2015) as courts reacted to 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 2016 Top Ediscovery Cases by Kroll Ontrack, the leading provider of ediscovery products and services.

In the past year, Kroll Ontrack experts summarized 57 significant state and federal judicial opinions from 2016 related to the discovery of electronically stored information (ESI). Four major categories arose most commonly in these opinions:

  • 56 percent of opinions dealt with disputes involving production and the methods used, and arguments of proportionality and scope of discovery
  • 32 percent of opinions focused on preservation, spoliation and motions for sanctions
  • 8 percent of opinions addressed procedural issues, such as search and predictive coding protocols
  • 4 percent of opinions addressed cost considerations, such as cost shifting and taxation of costs

“The 2015 FRCP amendments placed significant emphasis on both relevance and proportionality, and judicial opinions in 2016 followed suit,” said Michele Lange, director of thought leadership, Kroll Ontrack. “The courts are quite clear that parties need to come together early on to collaboratively establish discovery scope and production format, use of search terms and predictive coding, and how best to right-size costs. And litigation professionals are taking it to heart. A recent informal poll of 125+ ediscovery professionals showed that over half claim the amendments have had a positive impact on litigation practices, while another 25 percent stated the rules changes could go even farther to help out.”

Kroll Ontrack has been researching and analyzing significant ediscovery case law for nearly 15 years. As ediscovery practices balance the breadth of data against the legal obligation to preserve, collect and review relevant ESI for cases, staying current on what judges are saying about ediscovery practices is critical.  

Trends in 2016 Case Law

Proportionality finds responsibility on both sides of the table
In analyzing scope of discovery, proportionality and production format in light of the 2015 amendments to Rule 26(b)(1), 56 percent of ediscovery opinions this year addressed production issues. For example, in Carr v. State Farm Mut. Auto. Ins., the defendant filed a motion to compel, claiming that plaintiff did not “adequately respond” to its discovery demand. The courts granted the motion, demonstrating that the amendments have not changed the discovery burden: both the requesting and responding parties have a responsibility to explain why a discovery request should or should not be granted.

Courts hold significant influence around preservation, spoliation and sanctions
Comprising 32 percent of the ediscovery opinions this year, the amended Rule 37(e) pushed preservation practices to the forefront, with cases focusing on reasonable steps to preserve, intent to deprive another party of relevant ESI and the inherent power of the court to administer sanctions. In Orchestratehr v. Trombetta, the court declined to impose sanctions, because there was not enough evidence to show that the defendant acted in bad faith, showing that even if evidence of intentional spoliation is suspicious, stronger evidence of intent is needed under amended Rule 37(e). However, parties need to be aware that even though Rule 37(e) applies solely to ESI, it is not the only remedy available to the court. In Cat3 v. Black Lineage, the court granted sanctions, noting that it had inherent power to do so even if Rule 37(e) had not applied.

Predictive coding finds its place as a global discovery strategy
Search protocols and use of predictive coding or Technology Assisted Review (TAR) prominently stood out amongst the procedural issues opinions, which represented 8 percent of the ediscovery case law in 2016. While courts state that TAR is often the best and most efficient search tool, as in Hyles v. New York City, they stop short of forcing parties to leverage TAR or predictive coding, citing that the responsible party is best situated to decide how to search for and produce ESI responsive to a document request. On the global front, it is notable that in February 2016, Master Matthews issued the first British opinion, known as Pyrrho Investments Ltd. v. MWB Property Ltd., which approved the use of predictive coding in High Court proceedings, partly relying on Magistrate Judge Peck’s2012 opinion in Da Silva Moore v. Publicis Groupe. Barriers to adopting predictive coding during ediscovery are being broken down around the globe.

Ediscovery cost opinions highly influenced by new FRCP amendments
A smaller portion of 2016 judicial opinions (4 percent) addressed ediscovery costs. When the courts did cast an opinion on allocation for ediscovery costs, they noted a willingness to require parties to pay for their own discovery in certain instances. For example, in Elkharwily v. Franciscan Health Sys., the defendant objected that a discovery request was burdensome because it did not have an email archiving system, and therefore must search the backup tapes individually at great expense. The court agreed, but as the data was discoverable, it allowed the plaintiff to have access to the archived data, at the plaintiff’s expense.

For more information about the 2016 ediscovery case law research from Kroll Ontrack, visit: www.ediscovery.com/2016-top-ediscovery-cases/

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