eDiscovery Daily Blog

• October 26, 2012

I found this nice summary of Federal Rules of Civil Procedure and other sources that address proportionality and cooperation in eDiscovery from the Baker Hostetler blog, Discovery Advocate, written by Gil Keteltas entitled Advocating Proportionality? Start with the Rules!  Here are the highlights.

As the author notes, Rules 1, 26 and 37 each provide verbiage addressing proportionality, as follows:

• Rule 1 states that the rules “should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”
• In Rule 26(a)(1) disclosures, a party must describe  by category and location all electronically stored information in the party’s possession, custody or control  “that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.”
• Rule 26(f) mandates that the parties confer and discuss “any issues about preserving discoverable information; and develop a proposed discovery plan” that indicates the “parties’ views and proposals” concerning, inter alia, issues relating to the disclosure or discovery of ESI, form of production and assertions of privilege.
• Rule 26(g) requires certification, based on a reasonable inquiry, that Rule 26(a) disclosures were complete and that discovery requests, responses and objections are proper, necessary and reasonable given the law, nature and stage of the case.
• Rule 37(f) authorizes sanctions for failure to make disclosures or cooperate in discovery, including for failing “to participate in good faith in developing and submitting a proposed discovery plan as required by Rule 26(f).”

The author also recommends two publications from the The Sedona Conference®: Its Cooperation Proclamation and its Commentary on Proportionality (previously covered on this blog here and here), as well as this proportionality test white paper from the American Bar Association.  If you want case law dealing with proportionality, take a look here, here, here, here and here.  And, that’s just this year!

With 90% of the data in the world having been created in the last two years, managing eDiscovery of all that data continues to get more and more expensive.  Key to keeping those costs in check is the ability to promote proportionality, especially through the Rule 26(f) meet and confer with opposing counsel, and with the court (especially when the parties can’t agree on conducting eDiscovery more cost effectively).  The sources listed in this article provide excellent ammunition to advocate proportionality in eDiscovery with opposing counsel as well as with the court.

So, what do you think?  Have you disputed eDiscovery scope with opposing counsel in your cases?   If so, how have you addressed those disputes?  Please share any comments you might have or if you’d like to know more about a particular topic.

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