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, fourth Part, and fifth Part, we reviewed relevant cases from 2016 and 2017, and in the sixth Part, we pulled together the key points from our case law survey. In this Part, we begin our review the Sedona Conference’s guidance.
The Sedona Conference
For any unfamiliar with it, the Sedona Conference is a non-profit organization dedicated to advancing legal practice and the law “in a reasoned and just way” through dialogue, research, and writing by experienced practitioners and industry leaders. The organization’s publications have been and continue to be influential, particularly in eDiscovery. The Sedona Conference’s Working Group 1 first met to begin developing principles for eDiscovery in October 2002, and “[w]hile still in draft form, the First Edition influenced the development of the law and was cited in the landmark case of Zubulake v. UBS Warburg, 229 F.R.D. 422, 440 (S.D.N.Y. 2004).”
The practical ramifications of including the proportionality factors in the scope of discovery are evolving and many questions remain concerning how practitioners and judges will adjust. Those questions became the main drivers behind the initiative to revisit at this time The Sedona Conference Commentary on Proportionality in Electronic Discovery.
A public comment version was published in November 2016, and the final version was published in May 2017.
The Sedona Conference Principles of Proportionality
The Sedona Conference Commentary enumerates six core principles related to proportionality in eDiscovery:
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.
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.
Principle 3: Undue burden, expense, or delay resulting from a party’s action or inaction should be weighed against that party.
Principle 4: The application of proportionality should be based on information rather than speculation.
Principle 5: Nonmonetary factors should be considered in the proportionality analysis.
Principle 6: Technologies to reduce cost and burden should be considered in the proportionality analysis.
For each of these principles, a number of comments are then provided to explore the meaning and implication of the principle in practice. These comments are annotated with citations to relevant cases and commentaries, including a few of the same cases we covered in our survey.
The guidance, in general, is consistent with the case law we reviewed and the key points from that case law that we identified. The Commentary also provides practical guidance beyond those points, and I want to highlight a few key pieces of that additional guidance on: the role of proportionality during preservation; the importance of knowledge at the time; the benefits of early disclosure and dialogue; the application of testing and sampling, and the advantages of phased or iterative discovery.
Upcoming in this Series
Next, in the final Part of this series, we will conclude our discussion of proportionality in eDiscovery with a review of these five key topics from the Sedona Conference Commentary.