Sanctions Cases Double Over 2008; Courts Continue to Press for Cooperation; E-discovery Trends in Criminal and Constitutional Law

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July 8, 2009

2009 Mid-Year Update on E-Discovery Cases

To Our Clients and Friends:

A comprehensive review of more than sixty federal and state court opinions addressing e-discovery issued during the first five months of 2009 reveals a dramatic increase in the frequency with which courts consider and apply sanctions. In part, the increase in sanctions reflects solidifying legal standards governing when a potential litigant must preserve electronic evidence. These opinions also reflect a continuing effort by the courts to urge litigants and their counsel to cooperate in e-discovery matters, and to sensibly and proportionately develop e-discovery protocols.

Highlights of 2009 to date include:

  • More than half of the e-discovery opinions issued through May involved the consideration of sanctions, and sanctions were awarded in 36% of cases.
  • Many of the e-discovery opinions provide greater clarity regarding the duty to preserve relevant data, and the consequences of failing to do so.
  • Courts continue to urge transparency and cooperation among counsel in the e-discovery process.
  • An increasing number of opinions are addressing the e-discovery obligations of governmental entities as civil litigants.
  • Some of the opinions address electronic discovery and data in the constitutional context, especially in relation to rights protected by the First, Fourth, Fifth and Fourteenth Amendments.