They List Their 10 Key E-Discovery Issues for 2011.
Available for reading in the Metropolitan Corporate Counsel (April 3, 2011 release) is an article “10 Key E-Discovery Issues in 2011: Expert Insight to Manage Successfully” written by U.S. Magistrate Judge Andrew J. Peck (S.D.N.Y.) and attorney David J. Lender (a partner at Weil, Gotshal & Manges LLP).
They list the following as the key issues in this area for 2011:
1. Cooperation
2. Proportionality
3. When To Collect?
4. Search
5. Rule 502
6. Privilege and Privilege Logs
7. Social Networking
8. Cloud Computing
9. Foreign Discovery
10. Sanctions
The writers predicted that 2011 would continue to be dominated by motions for sanctions for alleged preservation failures (with most of these motions asking for awards of substantial attorney’s fees). In line with cooperation, the writers suggest that litigants should try to get together and invoke “proportionality”–trying to determine what is really important depending on the complexity of the case and attempting to agree on searching techniques. The writers report that keyword searching will produce less than 50% of responsive ESI, but that clustering and concept searching techniques (sometimes in tandem with keyword searches) will frequently prove more helpful. Cooperation between litigants/counsel was a focal topic of the article. (See also William A. Gross Construction Assoc. v. American Manufacturers Mutual Ins. Co., 256 F.R.D. 134, 136 (S.D.N.Y. 2009) (Peck, M.J.) [stressing importance of cooperation].)
According to the Socha-Gelbmann Electronic Discovery Survey, e-discovery costs were expected to top $4.6 billion in 2010 (up from over $2.7 billion in 2007).
BLOG UNDERVIEW–When co-contributor Mike was clerking for a New York City law firm in the summer after his second year of law school, he met (now) Magistrate Judge Peck, who was a practicing attorney at the time, through his law school colleague and friend, George W. Lewis, a trademark/copyright attorney now practicing with Jacobson Holman PLLC in Washington, D.C. Thanks to Judge Peck for co-authoring this e-discovery article.