October 28, 2017
According to the Chinese calendar, 2017 is the year of the rooster, and according to some in the e-discovery world, it’s also the year of proportionality. It’s a wakeup call: “Proportionality is here to stay.” This past May, The Sedona Conference Working Group on Electronic Document Retention & Production (WG1) published the third version of its work, The Sedona Conference® Commentary on Proportionality in Electronic Discovery, which attempts to provide guidance on Rule 26(b)(1) and proportionality.
Rule 26 (b)(1) was among the batch of 2015 Federal Rules of Civil Procedure (FRCP) amendments. Along with Rule 37(e), Rule 26 (b)(1) is intended to modify how civil litigation is handled.
Per WG1’s document: “The 2015 amendment restores the proportionality factors to their original place in defining the scope of discovery.” There is an increased emphasis on the role of proportionality.
The document features the group’s commentary on six core principles:
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.
Says the group, proportionality along with relevance is now one of the factors that determine the scope of discovery, and it should be considered when creating discovery requests, responses and objections.
While 2017 is the year of proportionality, WG1 also knew that not all states would adopt proportionality rules for discovery. WG1 advised in May that parties and practitioners planning or facing litigation that could be filed in state court should consult state laws to ensure they comply with applicable pre-litigation preservation duties.