The principles provide a useful framework for the application of proportionality to preservation, as well as practical guidance for negotiating the scope of discovery.
The Sedona Conference — a research and educational institute that brings together leading jurists, lawyers, experts, academics and others in an effort to move the law forward in a reasoned and just way — recently published for public comment the third iteration of its Commentary on Proportionality in Electronic Discovery. This version, prompted by the significant changes made by the 2015 amendments to the Federal Rules of Civil Procedure, provides a useful framework for the application of proportionality principles to the scope of preservation, as well as practical guidance for negotiating the scope of discovery. The Sedona Conference has proven influential with judges and litigants alike in the e-discovery arena, making its latest publication on proportionality a must read. The six principles are set forth below followed by a brief analysis of the Sedona comments to each.
Principle 1: The burdens and costs of preserving relevant electronically stored information should be weighed against the potential value and uniqueness of the information when determining the appropriate scope of preservation. Consistent with the advisory committee note to Rule 37(e), proportionality principles may be considered when evaluating pre-litigation preservation efforts. The commentary cautions against taking too narrow a view of what constitutes relevant electronically stored information (ESI) given the risk of permanent loss, but suggests the risk can be mitigated by meaningful discussion between the parties as to the substance of claims and defenses at the outset, as well as an earlier, more thorough investigation of the existence and location of relevant information. Further, any judicial scrutiny of preservation should be done in light of the proportionality factors set forth in Rule 26(b)(1), which include the importance of the discovery to the issues in the case, the parties’ resources and whether the burden outweighs the likely benefit.
Principle 2: Discovery should focus on the needs of the case and generally be obtained from the most convenient, least burdensome, and least expensive sources. Proper application of the proportionality factors should focus on the claims and defenses in a case and how the requested discovery bears upon them. The commentary notes that cooperation in the meet-and-confer process can focus on identifying the most readily available ESI and thus reduce the burden and associated costs. Given that the parties’ information early in a case may be limited, phased discovery may be appropriate as the parties can start with obviously relevant information while investigating additional material.
Principle 3: Undue burden, expense, or delay resulting from a party’s action or inaction should be weighed against that party. The commentary encourages meaningful good faith discussions regarding discovery and suggests that courts consider the extent that a party’s claimed burden grew out of its own action or inaction. The court may consider when the issue arose and whether the party could have raised the issue earlier. The commentary reiterates the need for meaningful discussion between the parties so that issues may be identified and addressed early.
Principle 4: The application of proportionality should be based upon information rather than speculation. While in some cases it may be clear that information sought is duplicative or marginally relevant, the commentary recommends that, in others, extrinsic evidence may be required to demonstrate the importance of the information sought or the effort required in order to produce it. Extrinsic evidence can include affidavits, estimates based on experience or industry standards. In some cases, courts may consider sampling the information sought to determine whether it is sufficiently important to warrant discovery; transparency in the sampling process can be particularly important where cost-sharing or cost-shifting has been raised. Assertions of burden and expense must be supported by hard information rather than speculation, and so the commentary recommends the use of qualitative metrics, such as the number of search-term hits of relevant versus irrelevant documents.
Principle 5: Nonmonetary factors should be considered in the proportionality analysis. Rule 26(b)(1) includes reference to nonmonetary factors, such as the importance of the issues at stake in the ligation, the parties’ relative access to information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden of the proposed discovery outweighs its likely benefit. Accordingly, public interest or policy considerations may weigh in favor of broader discovery, notwithstanding the associated burden.
Principle 6: Technologies to reduce cost and burden should be considered in the proportionality analysis. The commentary recognizes that the responding party generally selects the technology it will use. While there may be more efficient technologies available, such as a platform that collects emails into discussion threads, a party’s choice of a technology that is not the most ideal fit should not be held against it unless the technology is inadequate.