The 2015 amendments to the Federal Rules of Civil Procedure (FRCP) that set forth guidelines about data handling, proportionality and spoliation presented a game-changing moment for courts' handling of e-discovery. And while FRCP Rule 37(e) governing data spoliation sanctions is creating some noticeable efficiency gains for litigators, law firm Gibson Dunn's recent year-end recap of the 2017's e-discovery landscape suggests that it's still finding its footing in federal courts.

“We're seeing quite a few courts [where] they're writing decisions which don't mention Rule 37(e),” Gibson Dunn litigation partner Gareth Evans told LTN.

Evans sees a couple likely reasons for this. Attorneys who aren't as well versed in e-discovery work often cite precedent preceding the 2015 FRCP amendments in their motions, which puts the onus on judges to know to apply the appropriate rule. And while the rule has certainly picked up traction in courts, judges don't always know about and how to apply Rule 37(e).
“I think a lot of it has to do with education of the bar and education of the judiciary on these issues,” Evans added.

Evans has seen familiarity with e-discovery pan out into more fruitful gains in other parts of the litigation process. Notably, the rules seem to have flattened out some of the difficulties courts and litigators face in trying to assess what a reasonable use of predictive coding could and should look like.

“We're seeing predictive coding being used more often in situations where it's not likely to be contested,” Evans said. “So where a party needs to review a large incoming production, or in situations where it's very high volume discovery but symmetrical, it applies to both parties, and both parties either want to use predictive coding or want to be able to use predictive coding and are more likely to agree to it, or it's not likely to be disputed in any significant way.”

However, despite what e-discovery vendors often suggest, Evans said that predictive coding and technology assisted review (TAR) hasn't really caught on beyond a small number of cases with high data volumes.

“[Vendors have] been saying that since 2012. I wish it were the case, I really do,” Evans said. “It's not ubiquitous yet. It's being used only in a small minority of cases, but it is being used more, which is a good thing from my perspective.”

An area that has picked up traction, however, is e-discovery drawn from social media and mobile data, which continue to grow in scope and use in litigation. “You see them much more often being the repository of relevant information and communication,” Evans noted. “I think now what's emerging is in addition to your text and instant messages is that social media content is something that increasingly lawyers need to be aware of as a potential source of information,” he later added.