Recently, The Sedona Conference, a research and educational institute, published its 2016 Public Comment Version of The Sedona Conference Commentary on Proportionality in Electronic Discovery. This is the third version of this publication, which reflects the change and emphasis on proportionality under the 2015 amendments to the Federal Rules of Civil Procedure. The Commentary sets out six principles of proportionality guided by the Rules and case law.
Input to this public comment version is welcomed, and a subsequent final version will be published. Public comments may be made through January 31, 2017 to firstname.lastname@example.org.
Principle 1: The burdens and costs of preserving relevant electronically stored information (ESI) should be weighed against the potential value and uniqueness of the information when determining the appropriate scope of preservation.
The advisory committee note to Rule 37(e) suggests that proportionality principles can be considered in assessing the reasonableness of pre-litigation preservation efforts of all parties. When applying proportionality to preservation, an error can cause permanent loss of relevant information, so parties should be cautious of applying too narrow a scope of what is relevant ESI. Courts looking at a party’s preservation decisions should do so based on the proportionality provisions in Rule 26, and they should be cognizant of a party’s resources.
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.
While the scope of discovery can be broad, it is not unlimited and is subject to the proportionality factors as stated in Rules 26(b)(1), 26(b)(2)(C), and 26(g)(1)(B). The court should use the information gathered from the parties and consider the proportionality factors to reach a case-specific determination of the proper scope of discovery. It is also important for parties to discuss sources of discovery and cooperate early to reduce the burden of production. Additionally, it may be appropriate to conduct discovery in phases so that parties can determine the facts of the case to decide how to effectively and efficiently go about subsequent discovery.
Principle 3: Undue burden, expense, or delay resulting from a party’s action or inaction should be weighed against that party.
Courts often set discovery deadlines. Deadlines for substantial completion, or particular phases, of discovery can reduce inappropriately prolonged discovery processes consisting of burdensome requests or inappropriate objections. Proposing discovery requests early on in litigation allows parties to consider issues concerning compliance and proportionality, and take any disputes they can’t resolve to court for guidance and rulings.
When determining whether a discovery request or requirement is unduly burdensome or expensive, a court should consider to what degree these claims arose from the responding party’s own action or inaction. A party’s failure to engage in early discussions to develop a discovery plan and avoid possible disputes may impact the outcome of a proportionality determination made by a court. Additionally, failure to notify the requesting party of withholding relevant ESI based on proportionality should weigh against the responding party.
Principle 4: The application of proportionality should be based on information rather than speculation.
The court may limit discovery if what is sought is relevant but not sufficiently important to require its production. This often becomes an issue when the information sought is duplicative, cumulative, or not reasonably accessible. A court may order a sampling of the requested information to decide whether it is sufficiently important to require discovery.
Discovery needs to be limited if production of requested information is disproportionate to its likely benefits based on the Rule 26(b)(1) proportionality factors. Extrinsic evidence may be required to show the importance of the requested information or the effort needed to produce it. The responding party may show that the burden or expense of producing the requested information outweighs its likely importance, but this must be done through hard information rather than unsupported assertions.
Principle 5: Non-monetary factors should be considered in the proportionality analysis.
It is important to remember that the proportionality analysis includes important non-monetary considerations. Monetary issues are only one factor which is weighed against other factors. A party’s non-monetary resources, such as personnel and technology, may also impact a proportionality analysis.
Principle 6: Technologies to reduce cost and burden should be considered in the proportionality analysis.
The responding party usually selects what technology to use to identify relevant information; this can result in significant cost savings. Courts look to available technology in the proportionality analysis, but they should leave the choice of technology to the responding party as long as it is reasonable and appropriate for the needs of the case. Parties are advised to consult people with knowledge of the technological methods to help and create further efficiencies in this process.