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2007 IN REVIEW: E-DISCOVERY'S BIGGEST DEVELOPMENTS IN THE UNITED STATES
Joni Shogren, Esq. Staff Attorney, Legal Technologies, U.S. Region, Kroll Ontrack

The 2006 amendments to the U.S. Federal Rules of Civil Procedure (FRCP) raised many new and developing issues in 2007, including ongoing evolution of state e-discovery laws, judicial interpretation of the rules, and changes in technology. This year has seen a virtual e-discovery boom in the United States, as the legal community continues to learn how to best manage the increasing chasm of electronic information created and stored on a daily basis.

State Rules Update

Following the Federal Rules amendments of 2006, there has been discord among the states, with only a minority acting to implement procedural rules that mimic the Federal Rules. The following states have enacted rules that mirror or closely mirror the federal rules: Arizona, Idaho, Indiana, Louisiana, Minnesota, Mississippi, Montana, New Hampshire, New Jersey, and Texas. Furthermore, in an attempt to achieve state uniformity, the National Conference of Commissioners on Uniform State Laws acted in 2007. Following over a week of scholarly debate and discussion, the group issued its final approval and recommendation of the uniform rules relating to the discovery of electronically stored information (ESI). Their proposal is comparable to the FRCP, modified only where necessary to accommodate various state procedures.

Common Law Guidance

We also saw a plethora of common law jurisprudence in 2007. One of the areas with the most judicial interest is the “safe harbor” provision contained in Rule 37(f).

Although the safe harbor in Rule 37(f) was intended to protect organisations from sanctions for the destruction of data, the party must show reasonable operation of its electronic management system and, few, if any, have observed such protection under the new rule. For example, the court in Doe v. Norwalk Community College , 2007 WL 2066497 (D.Conn. July 16, 2007), refused to allow the defendant to claim the protections of Rule 37(f) because it failed to suspend its deletion policy upon notice of litigation. Another court refused protection in In re Krause , 367 B.R. 740 (Bkrtcy.D.Kan. June 4, 2007), since the hard drive wiping was not discontinued once the duty to preserve attached. Had the wiping feature been disabled, the computer would not have been automatically deleting files. The court in Oklahoma ex. rel. Edmondson v. Tyson Foods, Inc., 2007 WL 1498973 (N.D.Okla. May 17, 2007), went as far as to warn the parties to be “very cautious in relying upon any ‘safe harbor’ doctrine as described in new Rule 37(f),” when it refused protection.

There is also a common theme among the multitude of ESI sanction cases issued in 2007. U.S. Courts are unwilling to overlook discovery abuses. The new rules are in effect and parties must comply with discovery obligations. Under the proper set of facts, a court will impose sanctions, including monetary sanctions, adverse inference sanctions, as well as default judgment in the most serious instance.

Technology Trends

In addition to the case law and rules developments, 2007 resulted in new technologies to help the legal community manage varying types and sizes of ESI to be preserved, searched, and produced in litigation. Specifically, two new areas from 2007 captured the legal technology headlines.

• E-mail Analytics Software - New analytic technologies have been developed to help organisations analyse and search e-mail collections. Through the use of these desktop platforms that graphically display communication patterns, litigators are better equipped to evaluate what happened and whether misconduct occurred, as well as what e-mail should be processed for e-discovery and whether to retain an outside expert for further forensic or discovery analysis.
• Audio Discovery - The 2006 FRCP amendments specifically include sound recordings as discoverable and as a result, technology has improved to keep up with this new litigation requirement. Cutting edge technology now allows for phonetic searching of audio files. Legal teams with sound recordings in their data sets should consider using a review tool that incorporates phonetic searching.

Conclusion

Electronic discovery continues to impact almost every arena of U.S. law and is an area which savvy practitioners must continue to closely monitor. 2008 promises to be another exciting year in the area of ESI discovery.

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