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Cases from 2017 – Proportionality Series, Part 5

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A multi-part series reviewing decisions on proportionality in eDiscovery since the December 2015 amendments to the Federal Rules of Civil Procedure


In the first Part of this series, we reviewed the amendments made to Federal Rule of Civil Procedure 26(b)(1) in December 2015.  In the second Part, we reviewed one of the first decisions applying the amended rule.  In the third Part, we reviewed four cases from the first half of 2016, and in the fourth Part, we reviewed three cases from the back half of 2016.  In this Part, we conclude our case law survey with a few relevant cases from 2017.

Case Law Survey Part 3

In this case law survey, we are reviewing a variety of cases from across 2016 and 2017 that have touched on proportionality in discovery since the December 2015 Amendments.  We are reviewing them in chronological order:

  • Solo v. United Parcel Services Co., Case No. 14-12719 (E.D. Mich. January 10, 2017)
    • In this consumer class action case, the Plaintiffs sought extensive, package-level data about the Defendant’s past shipments over several years. The Defendant made a detailed showing of the substantial burden that would be associated with restoring the requested data from backup tapes and rendering it usable, and offered an estimation methodology for a reduced time period instead.  The Court agreed that the Defendant had established a burden disproportionate to the needs of the case at that time, and directed it to disclose its sampling and estimation methodology, under protective order, and to cooperate with the Plaintiffs on that approach.  In doing so, the Court emphasized the importance of the relationship between proportionality and cooperation:

The 2015 amendments to the Federal Rules of Civil Procedure emphasize two general principles that are germane to this case.  First, the parties have a heightened duty of cooperation in procedural matters such as discovery. . . .  Secondly, Rule 26(b)(1) emphasizes the principle of proportionality, stating that discovery should be “proportional to the needs of the case . . . and whether the burden or expense of the proposed discovery outweighs the benefit.”  Linking the concepts of cooperation and proportionality, the Advisory Committee’s Notes to Rule 1 state, “Effective advocacy is consistent with — and indeed depends upon-cooperative and proportional use of procedure.”  These principles are particularly important when, as here, the discovery sought comprehends a broad-ranging and massive amount of data[emphasis added]

  • In re State Farm Lloyds, Case Nos. 15-0903, 15-0905 (Tex. Mar. 26, 2017)
    • In this Texas Supreme Court decision regarding a dispute over the burdens associated with different forms of ESI production (e., native vs. static searchable), the Court reaffirmed the alignment between Texas and Federal rules regarding the appropriate scope of discovery, including the renewed emphasis on proportionality considerations for both requesting and responding parties:

Discovery is necessarily a collaborative enterprise, and particularly so with regard to electronic discovery.  The opposing party must object and support proportionality complaints with evidence if the parties cannot resolve a discovery dispute without court intervention, but the party seeking discovery must comply with proportionality limits on discovery requests and “may well need to . . . make its own showing of many or all of the proportionality factors.”  [internal footnotes omitted; emphasis added]

  • Mann v. City of Chicago, Case Nos. 15 CV 9197, 13 CV 4531 (N.D. Ill. Sept. 8, 2017)
    • In these consolidated cases alleging unconstitutional police practices, a discovery dispute arose over the Plaintiffs’ request for the Mayor and others in his office to be added as custodians for collection, review, and production. The City opposed this request on the grounds that adding the requested custodians would be disproportionately burdensome, but it did not provide any specific details about the alleged burden to support its argument.  In partially granting the Plaintiffs request (ordering some but not all requested custodians be added), the Court emphasized this failure, as well as the importance of the non-burden factors in the analysis:

The City argues in its sur-reply that it is impossible to determine how many emails there may be “unless the City actually runs the searches and collects the material.”  Still, the City should have provided an estimate of the burden.  The Court is not convinced by the City’s argument about the burden.  In addition, other Rule 26 factors – the importance of the issues and of the discovery in resolving the issues, and the parties’ relative access to information and their resources – weigh in favor of allowing discovery of more than just the two custodians proposed by the City. . . .  However, searching all of the custodians proposed by Plaintiffs is not proportional to the needs of the case.  [internal citation omitted; emphasis added]

  • Oxbow Carbon & Minerals LLC v. Union Pac. R.R., Case No. 11-cv-1049 (D.D.C. Sept. 11, 2017)
    • In this anti-trust case, the Defendant sought production of relevant documents and communications from the materials of the Plaintiff’s CEO. The Plaintiff objected to this request on the grounds of it imposing a disproportionate burden.  To demonstrate this lack of proportionality, the Plaintiff collected the materials, ran the agreed-upon search terms and reviewed a sample of the results to demonstrate the rate of responsiveness and estimate total costs to finish the work.  Although this effort established a lower responsive rate than was found for some other custodians, it also showed lower costs than originally estimated, and it did identify relevant, unique documents among the CEO’s materials.  The Magistrate Judge concluded that the requested discovery, despite its cost, was not disproportionate to the case when all the factors were considered:

In its briefing, Oxbow declines to address any of the other proportionality factors highlighted in Rule 26 . . . stressing only that the burden and cost of complying with Defendants’ request would outweigh its likely benefit.  Weighing the six Rule 26 proportionality factors, however, demonstrates that adding Koch as a custodian of documents to be searched for material responsive to Defendants’ discovery requests in this matter will be neither unduly burdensome nor unreasonably expensive in light of the facts of this case.  

. . . 

Plaintiffs’ counsel explained at the second hearing in this matter that Oxbow has spent $1.391 million to date on reviewing and producing approximately 584,000 documents from its nineteen other custodians and Oxbow’s email archive.  And again, Oxbow seeks tens of millions of dollars from Defendants.  Through that lens, the estimated cost of reviewing and producing Koch’s responsive documents – even considering the total approximate cost of $142,000 for that effort, which includes the expense of the sampling effort – while certainly high, is not so unreasonably high as to warrant rejecting Defendants’ request out of hand[internal citations omitted; emphasis added]


Upcoming in this Series

In the next Part of this series, we will continue our discussion of proportionality in eDiscovery with a review of the key takeaways from this case law survey.


About the Author

Matthew Verga

Director, Education and Content Marketing

Matthew Verga is an electronic discovery expert proficient at leveraging his legal experience as an attorney, his technical knowledge as a practitioner, and his skills as a communicator to make complex eDiscovery topics accessible to diverse audiences. An eleven-year industry veteran, Matthew has worked across every phase of the EDRM and at every level from the project trenches to enterprise program design. He leverages this background to produce engaging educational content to empower practitioners at all levels with knowledge they can use to improve their projects, their careers, and their organizations.

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