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The End of Sanctions &
the De-Risking of Discovery

Chapter 8

Summary: Discovery Without Fear

The 2015 revisions to Rule 37(e) have spurred a massive decline in spoliation sanctions, but that is only one of several changes reshaping approaches to discovery.

  • Overly expensive, incredibly complex discovery technology is being replaced by a new era of cloud-based software that is intuitive and easy to use, reducing technological barriers to defensible discovery.
  • An increase in eDiscovery competency and experience in both the bench and the bar has led to a greater comfort with handling electronic evidence in litigation.
  • These changes, paired with the decline in spoliation sanctions, are leading to a "derisking" discovery—and allowing practitioners to reimagine past approaches.

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If this is not the end of sanctions, it may be the beginning of the “de-risking” of discovery.

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For years legal professionals have been told, over and over and over, that the biggest thing to fear in eDiscovery is not fear itself, but sanctions.

For many, that fear has held them back from recognizing the true costs of eDiscovery: overly-expensive technology and under-efficient processes.

For attorneys in private practice, this fear has led them to outsource their discovery processes to expensive vendors, or avoid eDiscovery altogether.

For in-house counsel, fear over sanctions has been a barrier to streamlining processes, internalizing expertise, and reducing costs. It has created conflict with more risk-averse outside counsel and led to bloated processes and the proliferation of overpreservation.

This is why corporate legal leaders like Mira Edelman have praised the 2015 Rules revisions as “freeing.”

Whereas the fear of eDiscovery sanctions has held back innovative legal professionals in the past, the changes instituted by the new rules may now allow us to move beyond fear and to begin finding new solutions to the many discovery problems that remain.

"Whereas the fear of eDiscovery sanctions has held back innovative legal professionals in the past, the changes instituted by the new rules may now allow us to move beyond fear and to begin finding new solutions to the many discovery problems that remain."
"The End of Sanctions" cover page, showing two bound hands breaking free
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