Notable trends in e-discovery.

• Position: E-DISCOVERY

The intent of the Federal Rules of Civil Procedure is to ensure a "just, speedy, and inexpensive determination of every action and proceeding." That's a pretty tall order in a time when the amount of electronically stored information (ESI) is exploding. In an effort to meet that challenge, three trends have emerged that in-house counsel cannot afford to ignore, according to Benedict Hur and Matthew Werdegar, partners in Keker & Van Nest, in a recent article.

First, the sanctions for e-discovery violations are growing. There are indications that the number of violations may have leveled off, the authors said, but the courts are also much quicker to impose monetary penalties and issue sanctions for e-discovery misconduct. For example, in 2013 a federal judge levied a $1 million sanction for e-discovery mismanagement and warned that more could follow.

Second, more courts are using their local rule-making powers to enact new e-discovery model orders and guidelines. These new rules typically "call for phased discovery of ESI, limits on e-mail discovery, limits on the obligation to preserve and collect certain categories of ESI, increased cooperation between litigants on e-discovery issues and enhanced cost-shifting provisions to discourage e-discovery overreaching," the authors explained.

"Now more than ever, courts are willing to entertain creative proposals for reigning in e-discovery...