David J. Kessler, Robert D. Owen and Emily Johnston of Fulbright & Jaworski write that although it is common for parties to decide voluntarily to exchange search terms, what should not become commonplace (and, sadly, is starting to) is the forced disclosure of search terms by courts. Not only are search terms not within the bounds of discovery, but they are windows into how counsel are considering and evaluating their case.
William K. Dodds, Philip N. Yannella and Ben Barnett, partners at Dechert, write: One of the more controversial aspects of the Pension Committee case is its holding that the failure to issue a written legal hold constitutes per se gross negligence, a ruling that touched off a debate in the e-discovery community not just about the necessity of written legal holds but the application of any per se rules to e-discovery. In the wake of the decision, courts have largely found its bright-line approach to be unduly inflexible in application and sometimes harsh in result.
