It is well worth downloading eDiscovery Assistant’s excellent 2022 eDiscovery Case Law Year in Review | eDiscovery Assistant.
The Report provides interesting metrics about eDiscovery, such as the following chart:
Id. The Report states that “failure to produce” was the most litigated issue, followed by proportionality and sanctions. Interestingly, “failure to preserve” – the flip side of failure to produce – was not as heavily litigated and spoliation – the sequel to failure to produce – ran about even with redaction as decisional issues. The Report states that 7% of discovery disputes centered on data from cell phones: “There can be no question at this point that discovery of data from mobile devices is a consideration in almost all cases.” Id. at 13.
The Report also provides cutting edge analysis of case law and issues. For example: “2022 saw further dispute as to whether the Rule 26(b) [proportionality] factors also include privacy…. The crux of the arguments boil down to this: the Sedona materials argue that courts have recognized privacy considerations as part of the ‘burden’ analysis in proportionality, while Judge Francis takes a textual reading of Rule 26(b) that does not contain any explicit reference to privacy, and he argues that Rule 26(c) has historically been the source of privacy protection….” Id. at 12 (citations omitted).
The Report also addresses privacy concerns in connection with cell phone discovery, an issue addressed by Maryland courts. See Maryland Appellate Decision Permitting Limited Forensic Search of Non-Parties’ Cell Phones and Discovery From Cell Phones – Differing Civil and Criminal Protocols in Maryland.
The Report’s excellent discussion of search methods concludes that “where the parties agree to an ESI protocol defining the use of TAR, a court will not then allow them to deviate from that protocol absent a solid basis backed up by data.” Id. at 19; cf. Should an ESI Protocol Be Incorporated Into a Court Order? (suggesting escape clause) and Be Careful What You Agree To, But the Duty to Cooperate May Provide an Escape Hatch (Part II)(“While courts should not casually discard agreements between the parties, nor should they abrogate their duty to balance both burden and the likelihood of uncovering relevant evidence merely because a party made an improvident agreement.”).
Additionally, the Report highlights the “hit report” case of Raymond James & Assoc., Inc. v. 50 N. Front St. TN, LLC, which presents an important issue, see How to Avoid Contentious “Hit Report” Problems, and whether document-by-document review is required, an issue recently addressed in the District of Maryland, Judicial Interpretation of an ESI Protocol.
Finally, in the “areas to watch” section, the Report addresses emerging topics, such as the use of emojis in litigation, see What Do Judge Peck’s 2009 Wm. Gross Opinion and “Zoomers” Have to Do With Each Other?, and so-called “modern attachments,” see “Modern Attachments” or “Pointers”- What is a Document? (Part IV)(pointing to evidentiary problems if hyperlinks are not produced).
The Report correctly suggests that “litigators need to understand the perils of negotiating an ESI protocol or other document defining the parties’ obligations before truly understanding the scope of the issue to be covered. Failure to do so will leave your clients on the hook for additional obligations, or will result in missing out on finding critical evidence for your case.” That is exactly what happened in the a recent District of Maryland decision. See Judicial Interpretation of an ESI Protocol and Should an ESI Protocol Be Incorporated Into a Court Order?
eDiscovery Assistant’s Report is comprehensive, interesting, accurate, and worth reading.