How Rules Revisions and Growing Expertise Are “De-Risking” eDiscovery
Are we seeing the end of eDiscovery sanctions? The data indicates a powerful trend in that direction.
The 2015 amendments to the Federal Rules of Civil Procedure have drastically reduced the risk of spoliation sanctions, creating an environment where the threat of incurring liability through the handling of traditionally risky discovery processes is significantly diminished. In the three years since the amendments to Rule 37(e) went into effect, the number of federal cases involving spoliation sanctions has plummeted.
Exhaustive new research conducted by Logikcull shows that court issuance of spoliation sanctions has decreased by 35 percent from their height in 2014. Since 2016, more than three out of every four 37(e) sanctions motions have been denied. Such motions are, on average, denied in whole or in part in 76 percent of cases. When the stakes are the highest and the most severe sanctions are at issue, those motions were denied in whole or in part in 82 percent of cases in 2018.
This decline in sanctions, combined with a small, but significant growth in the bar’s technology expertise overall and the emergence of easier-to-use discovery tools, is leading to broad adoption of “do it yourself” discovery practices, where incurring liability through the handling of traditionally risky discovery processes is far less of a concern.
The end result, we posit, is a “de-risking” of eDiscovery, allowing practitioners, whether corporate legal departments, small firms, or their Big Law counterparts, to bring more of the discovery process in house, without the fear that has long accompanied eDiscovery practice. This change, too, has allowed corporate legal departments to focus on other imperatives, from cybersecurity to GDPR, while realizing significant cost savings. In one example, one of the world’s largest companies was able to realize an estimated $7.5 million savings by in-housing much of their eDiscovery work and subsequently reducing data reviewed by outside counsel by 30 percent on average.
The implications of this change have not been lost on innovation-focused practitioners. “When the amendments were approved, in-house lawyers were ecstatic,” says Mira Edelman, former Associate General Counsel of eDiscovery and Information Governance at Facebook and Senior Counsel and Discovery Manager at Google at the time of the 2015 amendments. “The new Rule gave us power to influence outside counsel who were more conservative in their approach to preservation. It gave in-house lawyers the legal authority to make decisions that weren’t driven by uncertainty, to focus on creating defensible workflows, and to begin thinking about corporate information governance. It was freeing.”
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