Monitoring trends in the electronic discovery world has become increasingly complex since there are often multiple cases appearing each week, versus the relatively glacial pace of even a few years ago. To further compound issues, many of these cases also happen to be highly fact specific, so it's often hard to glean any clear cut best practices. However, over the past year there has been a discernable trend in which judges have increasingly expressed skepticism over the self collection of data in the e-discovery process. In many of these cases, the reviewing judge or magistrate has looked at this traditional process with a jaundiced eye, in some cases using the self collection component as part of the rationale for imposing significant sanctions.
At the outset, the legal standard surrounding the preservation and collection process is pretty straight forward. Not surprisingly, a party fulfills its duty to preserve evidence if it acts "reasonably." Unfortunately, the challenge with this reasonableness standard is that it's often not clear what the contemporary standards are, particularly given that many enterprises do not share how they approach this issue. Furthermore, too many litigants are simply reactive to the electronic discovery process, and are seen as just going through the motions.