Kroll Ontrack, an electronic discovery and computer forensic service provider, has put together an interesting analysis of the electronic discovery case law that has been decided since the new federal rules were enacted a year ago.
According to Kroll, of the approximately 105 e-discovery opinions reported since December 1, 2006, the major issues involved in these cases break down as follows:
- 25% of cases addressed discovery requests and motions to compel
- 24% of cases addressed spoliation/sanction
- 23% of cases addressed issues involving the form of production
- 9% of cases addressed preservation/litigation holds
- 7% of cases addressed attorney-client privilege and waiver
- 6% of cases addressed production fees
- 6% of cases addressed admissibility of electronic evidence
The moral of the story? 75% of the cases analyzed by Kroll Ontrack dealt with discovery requests, motions to compel, the destruction of electronic data, sanctions, and the format in which electronic data must be produced. E-discovery is not going away any time soon and corporations must have a game plan and a document retention policy in place that permits them to respond efficiently and cost effectively to document requests and motions to compel that request electronic data. Without a game plan, corporations could, quite unintentionally, find themselves in the quarter of the cases that discuss sanctions and the spoliation of evidence.