If there’s one things companies should takeaway from the flock of decisions related to electronic discovery issues in 2009, it’s that they won’t get a pass from the courts for e-discovery failures.

Among 108 significant opinions representing e-discovery rulings between Jan. 1 and Oct. 31, 2009, 39 percent addressed sanctions, 27 percent of cases addressed various production considerations, 12 percent of cases addressed privilege considerations and waivers, and the same percentage addressed various procedural issues (such as searching protocol), according to an analysis by Kroll Ontrack.

“Courts are far less tolerant of corporations that make missteps and claim ignorance with respect to their duty to preserve, and the cases reflect that,” says Regina Jytyla, managing staff attorney for Kroll Ontrack. “The lesson to be learned is that companies must work to put in place the proper safeguards to preserve evidence that may be responsive to litigation or regulatory requirements.”

Other issues addressed included cost considerations, computer forensics protocols and experts, preservation and spoliation issues (but not sanctions), and discoverability and admissibility issues.

Among the cases that addressed sanctions, two-thirds of sanctions involved preservation and spoliation issues, while roughly 17 percent involved production disputes and the same percentage involved other discovery abuses.

Jytyla says another lesson companies ought to take away from this year’s court cases is the need to conduct due diligence in crafting search terms.

“The courts aren’t tolerant of parties picking search terms out of the clear blue sky,” she says. “Companies have to be up to speed on the technology and techniques available to help them uncover data quickly.”

While the inadvertent production of privileged information has been a hot-button issue, Jytyla says the adoption of Federal Rule of Evidence 502 is bringing more clarity in that area.

FRE 502 generally provides that the inadvertent disclosure of privileged information doesn’t result in waiver if reasonable steps are taken to prevent disclosure, and when a mistake is made, reasonable steps are taken to rectify the error.

“Companies are still struggling with the reasonableness standards, but with a rule in place to deal with the issue … they’re moving in the right direction,” she says.

Jytyla notes that there’s still uncertainty among companies about when the duty to preserve arises and when sanctions are warranted.

“The Zubalake cases in 2003 and 2004 said the duty to preserve arises upon reasonable anticipation of litigation, but to this day, parties don’t know what that means,” she says.

Initially, she says many companies “went to the extreme and preserved everything, which isn’t cost effective or efficient in the long run.” Now, however, she says some are finding a middle ground and taking different measures to properly preserve electronically stored information when they anticipate litigation, but not saving everything. They’re using technology to achieve that and performing more tasks in-house.”

In 2010, Jytyla says an emerging focus is likely to be on expanding the universe of ESI they manage as companies employ more technologies in their communications, creating more ESI in different locations.

“It used to be hard drives and servers, today it’s much more than that,” says Jytyla. As a result, she says IT and storage technologies are increasingly being driven by legal and compliance matters.

Kroll Ontrack also points to five notable e-discovery cases from 2009:

U.S. v. Comprehensive Drug Testing Inc. in which the court addressed guidelines for the search and seizure of electronic information;

William A. Gross Constr. Assocs. Inc. v. Am. Mfrs. Mut. Ins. Co., in which the court provided a “wake-up call” regarding the need for cooperation and effective searching techniques;

Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., and Bray & Gillespie v. Lexington (Aug. 2009), in which the court imposed sanctions for a “pattern of stubborn defiance” regarding e-discovery;

In re Fannie Mae Sec. Litig., in which the court affirmed a sanctions order finding that a non-party failed to comply with discovery deadlines; and

Phillip M. Adams & Assocs., LLC v. Dell Inc., in which the court denied application of a safe harbor provision for preservation failures.