2009 Year-End Electronic Discovery and Information Law Update

January 15, 2010

Electronic discovery is one of the most rapidly developing and increasingly important areas of interest for our clients.  The past year featured the continued refinement of best practices in e-discovery law, as both courts and litigants continued their struggle to balance cost-effective approaches to discovery with the right to equitable access to discoverable information.  The coming year is poised to be another one of significant developments.  Our Electronic Discovery and Information Law Practice Group will be carefully watching and reporting these developments to you throughout the year.

This 2009 year-end update provides an overview and analysis of the recent trends in e-discovery law, as well as a survey of case law developments.  For more in-depth treatment of these and other related topics, a collection of Gibson Dunn’s publications on electronic discovery and information law topics may be found on our website.  

While sanctions continued to be a dominant theme in 2009, courts and litigants have become more knowledgeable about the fundamentals, and the general framework of e-discovery obligations is becoming more settled.  Likely as a result of this development, e-discovery disputes in 2009 tended to involve the application of e-discovery principles to more complex factual scenarios.  While courts have increasingly demanded that parties engage in reasonable e-discovery practices–and often impose sanctions when they fail to do so–courts in 2009 also frequently encouraged parties to anticipate and resolve potential issues through cooperation.

Highlights of 2009 included:

  • The number of e-discovery opinions almost doubled in 2009 over 2008.
  • Almost half of the e-discovery opinions concerned sanctions, and sanctions were awarded in 70% of those cases, including 10 cases with terminating sanctions and five cases sanctioning counsel.
  • E-discovery law is becoming more widespread and largely uniform, especially in federal jurisdictions; courts in every circuit issued e-discovery opinions in 2009.
  • Courts are continuing to provide greater clarity on e-discovery requirements, including the duty to preserve, and the consequences of failing to do so.
  • Courts increasingly are urging litigants to engage in cooperative and transparent discovery.
  • Governmental entities are being held to the same e-discovery requirements as private litigants.

As in prior years, there was an increase in e-discovery opinions in 2009.  Gibson Dunn has identified more than 200 such opinions issued by federal and state courts in the year, almost double the number issued in 2008.  As the number of cases has increased, the body of e-discovery law is becoming more evenly distributed among jurisdictions. 

A similar growth of case law in state courts is also occurring (34 out of 208 cases), providing guidance in some key states.  The Delaware Chancery Court is a good example of this.  Before 2009, the Chancery Court had issued only a handful of e-discovery opinions (one in each of the years 2005 to 2008); and these cases addressed relatively minor e-discovery issues (e.g., form of production, access to a database, etc.). 

In 2009, the Chancery Court issued four opinions that addressed fundamental e-discovery issues such as triggering the duty to preserve, the scope of that duty, litigation holds, and spoliation.  See Beard Research, Inc. v. Kates, 981 A.2d 1175 (Del. Ch. 2009); Omnicare, Inc. v. Mariner Health Care Mgmt. Co., No. 3087-VCN, 2009 WL 1515609 (Del. Ch. May 29, 2009); TR Investors, LLC v. Genger, No. 3994-VCS, 2009 WL 4696062 (Del. Ch. Dec. 9, 2009); Triton Constr. Co. v. Eastern Shore Elec. Servs., Inc., No. 3290-VCP, 2009 WL 1387115 (Del. Ch. May 18, 2009).  For more information about the Delaware Chancery Court opinions see Gibson Dunn‘s client alert, "Delaware Chancery Court Awards Sanctions for Spoliation; Issues Significant Guidance on Electronic Discovery."

Last year’s opinions involved sanctions more than any other subject.  Of the 208 e-discovery opinions analyzed by Gibson Dunn, sanctions were sought in 88 of the cases (42%), and were awarded in 62 cases (70% of cases where sanctions were sought, and 30% of all e-discovery cases).  This is a significant increase over 2008, where 25% of the e-discovery cases sought sanctions.  Privilege waiver (13%), cooperation (10%), and form of production (10%) were also recurring issues in 2009.

2009 Trends in Sanctions

The most common sanctions awarded in 2009 were the costs and fees associated with the discovery issue in dispute (33 out of 62 cases, or 53% of the sanctions cases identified).  In at least five cases, not only was a party sanctioned, but their counsel also was sanctioned.  See, e.g., Swofford v. Eslinger, No. 6:08-CV-00066-Orl-35DAB, 2009 WL 3818593 (M.D. Fla. Sept. 28, 2009); Green v. McClendon, No. 08 Civ. 8496, 2009 WL 2496275 (S.D.N.Y. Aug. 13, 2009); Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 259 F.R.D. 568 (M.D. Fla. 2009), aff’d in part, rev’d in part by Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., No. 6:07-cv-0222-Orl-35KRS (M.D. Fla.  Jan. 5, 2010) (awarding additional sanction of dismissal of certain of plaintiff’s claims with prejudice); Steinbuch v. Cutler, No. 07-31459, 2009 WL 2370624 (Bankr. N.D.N.Y. June 5, 2009).   

Swofford and Green illustrate how courts are holding both inside and outside counsel responsible for ensuring that their clients fulfill their e-discovery obligations.  In Swofford, inside counsel for a sheriff’s department failed to issue a litigation hold notice when litigation became foreseeable, and failed to undertake other meaningful actions to preserve relevant information.  The court stated that in-house counsel "professed not to have ever read the Federal Rules of Civil Procedure to ascertain on even a rudimentary level what his and his client’s obligations were in this regard."  2009 WL 3818593, at *4.  In addition to awarding adverse inference sanctions, the court ordered the defendants and inside counsel to pay fees and costs.  This is especially notable because the in-house counsel was not an attorney of record in the case, and each defendant had separate outside counsel.

In Green, defendant’s counsel discussed with defendant the duty to preserve relevant data at the outset of the litigation, but the court concluded that counsel failed to provide enough detail or explicitly issue a written litigation hold notice.  Green, 2009 WL 2496275, at *5 (observing that "[u]nless [the defendant] brazenly ignored her attorney’s instructions, counsel apparently neglected to explain to her what types of information would be relevant and failed to institute a litigation hold to protect relevant information from destruction.")  When defendant reformatted her hard drive, resulting in the destruction of relevant evidence, the court awarded costs to be apportioned between defendant and outside counsel.  The court emphasized that "[t]he preservation obligation runs first to counsel, who has a duty to advise his client of the type of information potentially relevant to the lawsuit and of the necessity of preventing its destruction."  Id. (internal citations omitted).  

While costs and fees were the most common sanction awarded in 2009, more severe sanctions also were imposed.  Courts awarded adverse inferences in 13 cases and evidence preclusion in five others.  The most noteworthy sanctions, however, were the 10 decisions that resulted in the termination of litigation due to discovery failures.  In five of these cases, the sanctioned party knowingly deleted or destroyed electronic data.  See Arista Records, LLC v. Usenet.com, Inc., 633 F. Supp. 2d 124 (S.D.N.Y. 2009); Elec. Funds Solutions LLC v. Murphy, No. 6040161, 2009 WL 1717383 (Cal. Ct. App. June 19, 2009); Grochocinski v. Schlossberg, 402 B.R. 825 (N.D. Ill. 2009); Kvitka v. Puffin Co., No. 1:06-CV-0858 2009 WL 385582 (M.D. Pa. Feb. 13, 2009); Gillett v. Mich. Farm Bureau, No. 286076, 2009 WL 4981193 (Mich. Ct. App. Dec. 22, 2009). 

In four other cases, the sanctioned party repeatedly made knowing misrepresentations to opposing counsel and the court regarding the existence of relevant data or the party’s discovery conduct.  See 1100 West, LLC v. Red Spot Paint & Varnish Co., No. 1:05-CV-1670, 2009 WL 1605118 (S.D. Ind. June 5, 2009); Doppes v. Bentley Motors, Inc., 94 Cal. Rptr. 3d. 802 (Cal. App. 2009); Gamby v. First Nat’l Bank of Omaha, No. 06-11020,  2009 WL 127782 (E.D. Mich. Jan. 20, 2009); Magaña v. Hyundai Motor Am., 220 P.3d 191 (Wash. 2009).

Finally, in Micron Technology, Inc. v. Rambus, Inc.,  255 F.R.D. 135 (D. Del. 2009), Micron, anticipating that Rambus would soon sue it for patent infringement as it had other computer chip makers, brought a preemptive declaratory relief action against Rambus seeking to have Rambus’s patents declared unenforceable.  By monitoring other cases involving Rambus, Micron became aware of potential deficiencies in Rambus’s preservation of relevant information.  Micron obtained a ruling that Rambus had failed to properly preserve relevant data such that the court could not determine whether the patents were proper, and as a sanction declared Rambus’s patents unenforceable against Micron, thus terminating the litigation in Micron’s favor. 

Despite the increase in the number of cases awarding sanctions, courts tended to award them only for the most egregious conduct, and appeared to be carefully imposing them to offset the harm or burden suffered by the aggrieved party.  Generally, the harm suffered was the expenditure of resources to bring a motion to compel, or otherwise to seek the court’s intervention (resulting in the award of fees and costs).  Courts awarded more severe sanctions when a party willfully destroyed data or made misrepresentations to opposing counsel or the court.

2009 E-Disovery Sanctions

2009 Trends in Document Preservation

Document preservation remained an important e-discovery theme in 2009, and courts issued a steady stream of opinions providing guidance on best practices.  For more information on the 2009 case law developments in document preservation see Gibson Dunn attorney Farrah Pepper’s article, "To Have and to Hold: A Romantic Guide to Document Preservation."

The 2009 cases reiterated that the duty to preserve relevant evidence commences when litigation is reasonably foreseeable.  See, e.g., Micron, 255 F.R.D. at 148.  Cases also emphasized that this duty can be triggered long before the filing of a complaint.  See, e.g., Phillip M. Adams & Assocs. v. Dell, Inc., 621 F. Supp. 2d. 1173 (D. Utah 2009) (holding that because patents at issue were well known to be problematic in the industry, litigation regarding them was foreseeable well before the filing of a complaint); Beard Research, 981 A.2d at 1195 (holding that former employee’s duty to preserve may have attached when he disclosed confidential information to a competitor while seeking employment); Micron, 255 F.R.D. 135 (holding that patent holder’s duty to preserve was triggered when it developed litigation strategy against potential infringers well before filing complaint); Scalera v. Electrograph Sys. Inc., No. CV 08-50, 2009 WL 3126637 (E.D.N.Y. Sept. 29, 2009) (holding that employer had a duty to preserve when it received a notice from the EEOC of a complaint by a former employee); Major Tours, Inc. v. Colorel, No. 05-3091, 2009 WL 2413631 (D.N.J. Aug. 4, 2009) (holding that the duty to preserve was triggered nearly two years before litigation commenced when the plaintiffs’ attorney sent a letter threatening suit).  Major Tours is also an example of courts requiring greater transparency regarding parties’ e-discovery compliance, as the court ordered the defendant to disclose its litigation hold notices and distribution lists after being presented with deposition testimony that witnesses were unaware of the company’s litigation hold.

2009 Trends in Search Methodology

Courts generally are becoming more conversant and involved in e-discovery mechanics, as reflected in the increasing number of cases involving the use of search terms.  Some courts in 2009 declined to involve themselves in the minutiae of search terms–referring parties to experts (see Omnicare, 2009 WL 1515609) or requiring the parties to resolve the search term issues themselves (see, e.g., Smith v. Life Investors Ins. Co., No. 2:07-CV-681, 2009 WL 3364933 (W.D. Pa. Oct. 16, 2009)).  But others became involved in crafting search terms and made specific findings regarding the parties’ proposed terms.  See, e.g., Capitol Records, Inc. v. MP3Tunes, LLC, 261 F.R.D. 44 (S.D.N.Y. 2009) (ordering producing party to apply specified search terms across specified custodians’ data, but relieving the party from logging any privileged documents); Kay Beer Distrib., Inc. v. Energy Brands, Inc., No. 07-C-1068, 2009 WL 1649592 (E.D. Wisc. June 10, 2009) (ordering defendant to search for different variants of plaintiff’s name); In re Zurn Pex Plumbing Prods. Liab. Litig., MDL No. 08-1958 ADM/RLE, 2009 WL 1606653, at *3 (D. Minn. June 5, 2009) (ordering defendants to use certain search terms, although allowing the parties to "decide on a different set of fourteen terms if they choose to do so"). 

Although acknowledging that the producing party understands its own culture and lexicon better than the requesting party, some courts found that broader terms proposed by the requesting party should be used.  See Wixon v. Wyndham Resort Dev. Corp., No. C 07-02361-JSW, 2009 WL 3075649 (N.D. Cal. Sept. 21, 2009); In re Direct Southwest, Inc., No. 08-1984-MLCF-SS, 2009 WL 2461716 (E.D. La. Aug. 7, 2009).  Courts also required the parties to justify the search terms they requested.  See, e.g., Flying J Inc. v. Pilot Travel Ctrs., LLC, No. 1:06-CV-00030, 2009 WL 1834998 (D. Utah June 25, 2009) (requiring the requesting party to submit written justification for its proposed terms and allowing responding party to object).

Search terms were increasingly used to sample data sets to identify key custodians and to inform what, if any, additional discovery was warranted.  See In re Zurn, 2009 WL 1606653, at *3 (requiring the parties to run fourteen terms initially and to review the documents identified by them to determine whether additional terms should be run); Dunkin’ Donuts Franchised Rests. LLC v. Grand Cent. Donuts, Inc., No. CV 2007-4027, 2009 WL 1750348 (E.D.N.Y. June 19, 2009) (requiring the parties to identify terms tailored to specific corporate divisions based upon their involvement in the subjects at issue as initial discovery step); Flying J, 2009 WL 1834998 (requiring the requesting party to identify 28 terms for initial search).  Using search terms to sample a data set can often be effective in controlling the cost and burden of discovery.  As Magistrate Judge Peck of the Southern District of New York noted, the skillful use of search terms requires "careful thought, quality control, testing, and cooperation with opposing counsel."  William A. Gross Constr. Assocs. v. American Mfrs. Mut. Ins. Co., 256 F.R.D. 134, 134 (S.D.N.Y. 2009). For a more detailed analysis of the Gross Construction opinion, see Gibson Dunn attorneys Jennifer H. Rearden and Farrah Pepper’s article, "Judge Issues a "Wake-Up Call" to New York Lawyers When It Comes to Search Terms, Play Nice and Plan Ahead."

2009 Trends in Cooperation and Proportionality

Courts continued to emphasize the need for counsel to cooperate to avoid or resolve discovery disputes, often citing The Sedona Conference® Cooperation Proclamation.  The Cooperation Proclamation encouraged "a national drive to promote open and forthright information sharing, dialogue (internal and external), training, and the development of practical tools to facilitate cooperative, collaborative, transparent discovery," and set forth specific recommendations for achieving this goal.

Since its publication, the Cooperation Proclamation has gained significant support among the judiciary.  As of January 2009, 44 judges had endorsed the Cooperation Proclamation.  At year end, that number increased to nearly 100.  Even Supreme Court Justice Stephen Breyer has written supportively of the principles of the Cooperation Proclamation, calling on litigants to "act cooperatively in the fact-finding process," noting that cooperation between parties will encourage resolution of cases, "and this will help ensure that the courts are not open only to the wealthy."  See 10 The Sedona Conference® Journal (Supp. 2009).

Following the 2008 decision in Mancia v. Mayflower Textile Services. Co., 253 F.R.D. 354 (D. Md. 2008), a number of decisions in 2009 expressly adopted the Cooperation Proclamation as a roadmap for resolution of electronic discovery disputes.  Several courts ordered parties to cooperate and reach agreement regarding issues ranging from production of backup tapes to the form of production, specifically citing The Sedona Conference® Cooperation Proclamation as the basis for the order.  See, e.g., Dunkin’ Donuts, 2009 WL 1750348 (ordering parties to enter into an agreed-upon protocol to govern electronic discovery); Wells Fargo Bank, N.A. v. LaSalle Bank Nat’l Ass’n, No. 3:07-CV-449, 2009 WL 2243854 (S.D. Ohio July 24, 2009) (admonishing the parties for not engaging in an effective meet and confer process and denying any further discovery); Capitol Records, 261 F.R.D. at 50 (admonishing the parties for focusing efforts on "dueling epistles for submission," instead of cooperating on resolving discovery disputes); In re Direct Southwest, Inc., 2009 WL 2461716 (citing the Cooperation Proclamation, the court admonished the parties for submitting self-serving search terms); Oracle USA, Inc. v. SAP AG, No. C-07-01658, 2009 U.S. Dist. LEXIS 91432 (N.D. Cal. Sept. 17, 2009) (granting preclusion of evidence regarding damages because the claiming party had previously agreed that it would not seek damages on certain subjects and holding the party to its agreement); Newman v. Borders, 257 F.R.D. 1 (D.D.C. 2009) (ordering defendant to answer nine written questions in lieu of additional depositions, citing the Cooperation Proclamation and the court’s inherent duty to limit discovery costs and move litigation forward); Ford Motor Co. v. Edgewood Props. Inc., 257 F.R.D. 418 (D.N.J. 2009) (indicating the appropriateness of early discussion of the preferred format of production as encouraged by the Cooperation Proclamation and denying re-production of documents in native format).  For further discussion of the application and impact of The Sedona Conference® Cooperation Proclamation see Gibson Dunn attorneys Jennifer H. Rearden and Farrah Pepper’s article, "If The Sedona Conference Builds It, Will They Cooperate?  Year in Review."

Even decisions that did not expressly adopt the Cooperation Proclamation emphasized the advantages of reaching agreed-upon resolutions to electronic discovery disputes.  See, e.g., Dahl v. Bain Capital Partners, LLC, No. 07-12388-EFH, 2009 WL 1748526, at *1 (D. Mass. June 22, 2009) ("The parties should cooperate as much as possible in exchanging information, for this collaboration helps to fulfill the overall goal of discovery: to focus on matters reasonably calculated to produce evidence admissible at trial."); In re Weekley Homes, L.P., 295 S.W.3d 309, 321 (Tex. 2009) ("[P]rior to promulgating requests for electronic information, parties and their attorneys should share relevant information concerning electronic systems and storage methodologies so that agreements regarding protocols may be reached or, if not, trial courts have the information necessary to craft discovery orders that are not unduly intrusive or overly burdensome.") 

When parties reached agreement, courts often held them to their bargain.  See, e.g., Widevine Techs., Inc. v. Verimatrix, Inc., No. 2-07-CV-321, 2009 WL 4884397 (E.D. Tex. Dec. 10, 2009) (denying a motion to compel the production of documents outside of the date range agreed to by the parties, even though the documents might be responsive); In re Classicstar Mare Lease Litig., MDL No. 1877, 2009 WL 260954 (E.D. Ky. Feb 2. 2009) (denying a motion to compel the production of documents in a format different from the one agreed to initially by the parties).  Agreements were reached not only between parties of roughly equal resources or amounts of potentially relevant data, but also between parties with unequal resources.  See, e.g., Capitol Records, 261 F.R.D. 44; Oracle USA, 2009 U.S. Dist. LEXIS 91432; Widevine Techs., 2009 WL 4884397; Ford Motor Co. v. Edgewood Props. Inc., 257 F.R.D. 418; Newman, 257 F.R.D. 1.  By enforcing e-discovery protocols negotiated by the parties, courts rewarded cooperative conduct, just as sanctions punished uncooperative conduct.

Courts were increasingly sensitive to the burden associated with e-discovery, and employed creative methods to proportionately and iteratively identify relevant data.  See, e.g., Rahman v. Smith & Wollensky Rest. Group, Inc., No. 06 Civ. 6198LAKJCF, 2009 WL 773344 (S.D.N.Y. Mar. 18, 2009) (holding that email was inaccessible because of undue burden or cost in proportion to its potential benefit though the email was on a live system and not backup tapes); In re Zurn, 2009 WL 1606653, at *2 (ordering a sampling of data using limited search terms to determine whether additional discovery was warranted). 

The increased emphasis on cooperative, transparent, and proportional discovery appears to be bearing fruit, as evidenced by the number of cases where parties are negotiating discovery agreements, seeking to agree on search terms, and employing sampling or other iterative techniques.  It is likely that this trend will continue to develop in the coming year.

2009 Trends in Privilege Waiver

Courts issued a number of decisions in 2009 applying and interpreting Federal Rule of Evidence 502, which was enacted in 2008 to provide uniformity and greater protection against waiver of the attorney-client privilege and work-product protection due to disclosure of privileged information.  Several decisions addressed Rule 502(b), which provides that an inadvertent disclosure is not a waiver if the holder "took reasonable steps to prevent disclosure" and "promptly took reasonable steps to rectify the error."  In determining whether a producing party’s production methodology was reasonably designed to prevent disclosure, courts considered the volume of privileged documents produced compared to the total volume of documents, the use of "sophisticated software" for the review, the extent, and quality of the training of the attorneys and/or paralegals conducting the review, and other factors.  See, e.g., Coburn Group, LLC v. White Cap Advisors, LLC, 640 F. Supp. 2d 1032 (N.D. Ill. 2009) (granting the claw back of email containing work product finding that steps to prevent disclosure were reasonable); United States v. Sensient Colors, Inc., No. 07-1275 (JHR/JS), 2009 WL 2905474 (D.N.J. Sept. 9, 2009) (holding that the first of three groups of privileged documents inadvertently produced could be clawed back, but second and third groups could not because producing party was on notice and did not rectify its error in producing them); Heriot v. Byrne, 257 F.R.D. 645 (N.D. Ill. 2009) (holding that inadvertent disclosure of privileged documents by a party’s e-discovery vendor did not waive the privilege because the steps to prevent disclosure were reasonable, even though not followed by vendor, and thus not attributable to the party). 

Along with the increasing application of Rule 502(b), the use of Rule 502(d) protective orders also increased.  Rule 502(d) allows a court to issue an order–for example, a stipulated protective order–pursuant to which a disclosure of privileged or protected information, whether inadvertent or purposeful, will not constitute a waiver in any federal or state proceeding.  Some courts have even required parties to incorporate Rule 502(d) into their discovery plans to avoid burdensome, expensive, and time-consuming privilege reviews.  See, e.g., Spieker v. Quest Cherokee, LLC, No. 07-1225-EFM, 2009 WL 2168892 (D. Kan. July 21, 2009).  The advantage of a Rule 502(d) order is that it eliminates an inquiry into the reasonableness of the steps the producing party took to prevent disclosure, as required under Rule 502(b). 

Rule 502(d) protective orders are being used not only to protect against waiver for inadvertent disclosure of privileged or protected information, but also to protect against waiver when a party purposefully discloses protected information–e.g., to the DOJ or a regulatory agency.  Although a Rule 502(d) order can be a powerful protective tool, the wording of the order must be carefully considered.  The Rule 502(d) order issued in SEC v. Bank of America Corp., No. 09 Civ. 6829, 2009 WL 3297493 (S.D.N.Y. Oct. 14, 2009), is instructive in this regard.  Judge Rakoff of the Southern District of New York entered the parties’ negotiated Rule 502(d) order, but indicated that the order would not preclude parties in private litigation from challenging the defendant’s claim of privilege.  Id., at *1.  In effect, the court appeared to suggest that despite the intention of Rule 502(d), the language of this particular stipulated order (which in part was phrased in terms of selective waiver) might be insufficient to prevent a waiver of the privilege.  For more detailed analysis of FRE 502 and its application in case law see Gibson Dunn attorneys Gareth Evans and Farrah Pepper’s article, "Federal Rule of Evidence 502: Getting to Know an Important E-Discovery Tool."

2009 Trends Where the Government Is a Party

In 2009, courts continued to issue e-discovery decisions involving governmental entities as civil litigants, and the case law is more clearly defining the government’s e-discovery obligations.  Judge Shira Scheindlin held in SEC v. Collins & Aikman Corp. that "[w]hen a government agency initiates litigation, it must be prepared to follow the same discovery rules that govern private parties."  256 F.R.D. 403, 418 (S.D.N.Y. 2009).  In Collins & Aikman, the SEC argued that a government agency should be able to unilaterally restrict the scope of a search of email based on assertions of "undue burden" and limited public resources.  Judge Scheindlin characterized this argument as "patently unreasonable" and emphasized that the SEC "is not entitled to special consideration concerning the scope of discovery, especially when it voluntarily initiates an action."  Id. at 414.  Several other cases involved a governmental entity as a litigant, and their e-discovery obligations.  See Ford Motor Co. v. United States, No. 08-CV-12960, 2009 WL 2176657 (E.D. Mich. July 21, 2009) (ordering IRS to conduct search of employees’ email accounts over government objection that discovery should be limited due to its status); In re Fannie Mae Sec. Litig., 552 F.3d 814 (D.C. Cir. 2009) (ordering non-party regulator to provide allegedly privileged documents to litigants for a "quick peek" review because of significant and repeated delays in production); Chambers v. Dep’t of the Interior, 568 F.3d 998 (D.C. Cir. 2009) (granting summary judgment against DOI for spoliation); Ak-Chin Indian Cmty. v. United States, 85 Fed. Cl. 397 (2009) (granting motion to compel against the Department of Interior, requiring the organization and labeling of tribal records as held in the ordinary course); Neighborhood Alliance v. County of Spokane, No. 27184-6-III, 2009 WL 2456857 (Wash. Ct. App. Aug. 11, 2009) (granting motion to compel against county in FOIA request and ordering adequate search of computers); Sensient Colors, 2009 WL 2905474 (denying claw back request of privileged documents because of unreasonableness of plaintiff’s protocols to prevent disclosure).


In sum, 2009 featured a record number of reported e-discovery decisions.  While sanctions continued to be a major topic, many decisions also addressed document preservation, search methodologies, cooperation, the application of Federal Rule of Evidence 502 to privilege waiver issues, and the e-discovery duties of governmental entities.  We will continue to track these and other developments in the e-discovery field and report them to you in our 2010 Mid-Year Report.

Gibson, Dunn & Crutcher LLP

Gibson Dunn & Crutcher’s lawyers are available to assist in addressing any questions you may have regarding the issues discussed in this article.  The Electronic Discovery and Information Law Practice Group brings together lawyers with extensive knowledge of electronic discovery and information law.  The group is comprised of seasoned litigators with a breadth of experience who have assisted clients in various industries and in jurisdictions around the world.  The group’s lawyers work closely with the firm’s technical specialists to provide cutting-edge legal advice and guidance in this complex and evolving area of law.  For further information, please contact the Gibson Dunn lawyer with whom you work or any of the following members of the Electronic Discovery and Information Law Group Steering Committee:

Los Angeles/Orange County
Gareth T. Evans – Practice Co-Chair (213-229-7734, [email protected])

New York
Jennifer H. Rearden – Practice Co-Chair (212-351-4057, [email protected])
Farrah Pepper – Practice Vice-Chair (212-351-2426, [email protected])

Washington, D.C.
Michael F. Flanagan (202-887-3599, [email protected])

San Francisco
G. Charles Nierlich – Practice Co-Chair (415-393-8239, [email protected])
George A. Nicoud III ("Trey") (415-393-8308, [email protected])

Palo Alto
Paul J. Collins (650-849-5309, [email protected])

M. Sean Royall – Practice Co-Chair (214-698-3256; [email protected])
Sarah Toraason (214-698-3226, [email protected])

Robert C. Blume (303-298-5758, [email protected])

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