Report: 2016 a good year for e-discovery.

• Position: E-DISCOVERY

2016 is shaping up to be an eventful year for e-discovery, according to a mid-year report.

With the U.S. Federal Rules of Civil Procedure (FRCP) amendments in effect and plenty of new technologies, Gibson, Dunn & Crutcher's "2016 Mid-Year Electronic Discovery Update" describes e-discovery as evolving, ripe for innovative technologies, struggling to keep pace with new sources of discoverable information, and watchful of post-FRCP changes.

E-discovery looks "much better" than in years past, in part because FRCP Rules 26(b)(1) (discovery must be relevant and proportional) and 37(e) (preservation responsibilities and sanctions for failure to preserve) have "for the most part" had "their intended effects," noted co-author Gareth Evans, litigation partner at Gibson Dunn. This is a stark change from the 2006 amendment to Rule 37(e), which was not applied as intended, he added.

According to the report, the positives include the following:

* In the first six months of 2016, Rule 37(e) was applied in 32 decisions, with 13 granting sanctions and 19 denying them. This is a "substantially slower" pace than in past years, the report says (150 sanctions in federal courts in 2011 and 120 in 2012). The report says the reduction is likely due to a growing awareness of preservation duties.

* A rational, easy-to-apply set of criteria in amended FRCP 37(e) for imposing sanctions for failure to preserve discoverable electronically stored information (ESI) seems to have resulted in shorter sanctions decisions that are faithful to the amended rule, as well as in substantially fewer sanctions motions and decisions.

* Courts also appear to be faithfully implementing the requirement of amended Rule 26(b)(1) that discovery must be both relevant and proportional, with courts repeatedly holding that merely establishing relevancy but not proportionality is not enough. Despite once implicitly allowing broad "fishing expeditions," courts are now explicitly prohibiting them.

* What appears to be a dramatic reduction in the number of...