2020 has certainly been a year where numbers are the name of the game, and case decisions in the ediscovery arena are no different. Work from home has made for a record breaking number of ediscovery decisions this year — we’ve published 2098 decisions from federal, state, administrative and tribal courts since January 1, 2020. Each case is tagged by our content team with specific ediscovery issues to allow research by issue in just a few clicks.
So what are we seeing in those 2098 decisions? Our new dashboard tracks the top three issues every seven days (by case decision date) and three main issues have consistently been the top week after week:
- Failure to Preserve — 185 decisions in 2020 have addressed a party’s duty or failure to preserve ESI for discovery purposes. Of those, 154 involved a party seeking sanctions for discovery abuses under the multiple sections of FRCP Rule 37.
- Proportionality — 650 decisions, yes 650 decisions from state and federal courts since January 1, have addressed proportionality factors of FRCP 26(b)(1) to determine whether 1) requested discovery considers the importance of the issues at stake in the action, 2) the amount in controversy, 3) the parties’ relative access to relevant information, 4) the parties’ resources, 5) the importance of the discovery in resolving the issues, and 6) whether the burden or expense of the proposed discovery outweighs its likely benefit.
- Sanctions — of the over 2000 case decisions added to our database, more than 660 decisions sought sanctions as a remedy for discovery abuses under Rule 37. As Judge Francis and I agreed at Relativity Fest in 2019, motions for sanctions have increased exponentially in the last three years, regardless of whether the facts support a grant of sanctions under the more stringent standards of Rule 37 adopted in 2015.
The level of sophistication we are seeing from Courts on complicated issues shows that courts are learning ediscovery issues and look to counsel to have the appropriate facts and know the law on issues related to ESI. The most recent decision in Lawson v. Spirit Aerosystems, Inc. demonstrates that courts are not only well versed on applying the amended FRCP to ESI issues, they are not afraid to leverage them where a party continues to press for discovery where the data shows there is no value in pushing forward with TAR or any other review process. (Spoiler alert, the court awarded $790,000 in costs on TAR to defendants after plaintiff pressed for more TAR.) Doug Austin covered the case, one of six discovery decisions in that case, in more detail at eDiscovery Today.
The volume of decisions we are seeing from courts continues to grow. We’ll keep you up to date on trends in case law across the country and we’ll move to adding international decisions including GDPR and impact cases like Schrems II in 2021. In the meantime, our content team will continue to review and provide our users with the body of case law from across the country to allow you to get up to speed on ediscovery issues in just a few clicks.
