E-Discovery Trends to Watch in 2017

Courts will expect parties to cooperate. Federal Rules of Civil Procedure amendments in 2015 make it clear that increased cooperation is required in e-discovery. If parties cannot agree about scope, search terms, production formats or other issues, assume courts will send the disputes back to the parties for resolution.

In-house counsel will also need to understand proportionality. When setting parameters, Rule 26(b) requires parties to take into account such things as “the amount in controversy,” “the parties’ resources,” “the importance of the issues at stake in the action,” and “whether the burden or expense outweighs its likely benefit.” Cost-splitting or shifting could also become a norm as part of proportionality.

When ESI has been lost, counsel will need to be prepared to argue it occurred despite “reasonable steps” having been taken. Under amended Rule 37(e), there should be no sanctions so long as a party took reasonable steps to preserve the evidence. Additionally, for there to be spoliation, the party responsible for the lost evidence must be shown to have acted with an “intent to deprive,” and the information must not be obtainable by other means.

Predictive coding is taking its place in legal systems internationally. Its use has been approved in Ireland, in Britain, and most recently in Australia.

This is just the beginning of what we will see in years to come, as both international and domestic courts recognize the value that new technologies bring to discovery.