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:
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]
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]
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]
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, JD
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. A ten-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.