More eDiscovery procedural disputes but fewer sanctions in 2012

An article on Law Technology News has the self-explanatory heading Kroll Study Sees Dramatic Drop in eDiscovery sanctions. The point is an important one, because it is sanctions, or the fear of sanctions, for eDiscovery failures which drives so much of the cost. What brings the percentage of  “prominent cases that imposed sanctions on parties” down from 42% to 32% between 2011 and 2012?

Two apparently contradictory explanations are offered:

Parties are being more collaborative…

The number of procedural disputes has increased significantly.

The contradiction is not as great as appears, because both collaboration and procedural disputes follow from early attention to eDiscovery issues. If this often results in agreement, it must just as often result in a disagreement which has to be taken to the court.

Either is better than ex post facto punishment for discovery failures which are attacked down the line when, perhaps, much wasted work has already been done. The answers which emerge from the article are that “eDiscovery is standard practice now”, that “courts are getting down in the mud”, and that technology assisted review is gaining acceptance because of the savings of cost and time which result from its use – “2013 is probably the year that TAR will become mainstream”.

About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
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