The Perfect is the Enemy of the Good: The Case for Proportionality Rules Instead of Guidelines in Civil E-Discovery

Author:Leah M. Wolfe
Position:J.D. candidate, May 2015, Capital University Law School; B.A. in History magna cum laude, June 2007, Ohio University Honors Tutorial College. I would like to thank my long-suffering husband for his support and patience during my late-night writing and editing sessions and my mom for her valuable proofreading services. I would also like to...
Rulesnot mere guidelines—order civil litigation.2 However, in the
context of electronic discovery, judges have been remarkably reluctant to
treat these rules as anything more than broad guiding principles, picking
and choosing among provisions, sometimes seemingly at random.3 The
result is a piecemeal conglomeration of case-by-case decisions that offers
no guidance to parties attempting to plan, conduct, and defend discovery
practices.4 This Comment argues that a new set of rulesin the form of a
mandated proportionality analysis used for all discovery planning and
discovery disputesmust replace the old jumble of guidelines that
entrenches civil litigation in a costly, time-consuming, and inefficient
Copyright © 2015, Leah M. Wolfe. The views expressed herein are my own and do not
represent the position of the United States Department of Justice, the Executive Office for
United States Attorneys, or the United States Attorney’s Office for the Southern District of
1 Quote originally attributed to Voltaire. The original French is “[l]e mieux est l’ennemi
du bien,” or literally, “[t]he perfect is the enemy of the good.” Quote by Voltaire,
perfect-is-the (last visited Sept. 18, 2014).
* J.D. candidate, May 2015, Capital University Law School; B.A. in History magna
cum laude, June 2007, Ohio University Honors Tutorial College. I would like to thank my
long-suffering husband for his support and patience during my late-night writing and
editing sessions and my mom for her valuable proofreading services. I would also like to
express my deep appreciation to my expert colleague, Assistant United States Attorney
John J. Stark, for his incisive commentary and encouragement, and my faculty advisor,
Professor Janet G. Blocher, for her all her work in improving this comment each step of the
way. Finally, I would like to dedicate this comment to my daughter Eleanor; her ability to
overcome the odds and zest for life are my inspiration and motivation every day.
2 See Fed R. Civ. P. 1.
3 See Barnette, infra note 20, at 120.
4 See discussion infra Part V.
5 See discussion infra Part V.
A. Overview of this comment
This Comment will first give an overview of the electronic discovery
process and the unique problems it poses in civil litigation.6 In Parts I.C.
and I.D., this Comment will then briefly overview both the Sedona
Conference’s Commentaries on Proportionality and the evolution of the
Federal Rules of Civil Procedure (Federal Rules).7 Part II.A addresses a
handful of important electronic discovery cases and describes how those
early decisions have led to the current need for a proportionality
framework.8 Part III analyzes the proposed amendments to Federal Rule
of Civil Procedure 26 in detail.9 In Part IV, this Comment will then take a
closer look at each of the Sedona Conference’s principles of
proportionality, including the policy behind each principle and examples of
scenarios that implicate those policies.10 Finally, in Part V, this Comment
proposes a factor-based proportionality framework, incorporating both the
proportionality principles and the policies underlying the proposed
amendments to the Federal Rules.11 Regardless of whether the
amendments to the Federal Rules are adopted in their current proposed
form, this framework will allow judges to improve uniformity,
consistency, and predictability in electronic discovery litigation, thus
facilitating the just and timely resolution of civil suits.
B. E-Discovery Overview and a Few Terms of Art
As technology evolves to permeate nearly every aspect of daily life,
the volume of electronically stored information (ESI) implicated in civil
litigation has exploded to unfathomable levels.12 Information is classified
as ESI if it is stored in a format that is readable only by a computer.13 This
6 See discussion infra Part I.B.
7 See discussion infra Par t I.C and I.D.
8 See discussion infra Part II.A.
9 See discussion infra Par t III.
10 See discussion infra Part IV.
11 See discussion infra Par t V.
12 See, e.g., Jason Trahan, Overwhelming Volume of Electronic Evidence Threatens to
Transform Justice System, DALLAS NEWS (Oct. 30, 2011, 11:28 PM),
electronic-evidence-threatens-to-transform-justice-system.ece (discussing “billions of
pages” of evidence seized in a cyber-fraud case). See also infra note 68 (discussing the
preservation of 100 petabytes of information in a civil products liability case).
13 Burke T. Ward, et al., Electronic Discovery: Rules for a Digital Age, 18 B.U. J. SCI.
& TECH. L. 150, 155 (2012).
includes not only the information an end user of a device sees and uses on
a screen, but also metadata: electronically stored information about the
characteristics of the data . . . , which can include information about the
files origin or validity.”14 Metadata is commonly referred to as “data
about data.”15 Discoverability of metadata is a relatively new development
in civil litigation, but such information “is now discoverable and often a
significant factor in litigation.”16
ESI, and particularly metadata, is notoriously difficult to deal with in
the legal context. Compared to traditional data, “electronically stored
information is more dynamic as it can be intentionally or negligently
destroyed, altered, lost, or dispersed, by action or inaction.”17
Additionally, ESI is almost always more voluminous than traditional paper
discovery,18 and it can be stored in a vast array of places, including
desktop computer hard drives, laptops, cell phones, and the elusive
“cloud.”19 An illuminating example of ESI’s multiplication of potentially
discoverable information is the number of emails North American
businesses send: 2.5 trillion per year.20 Moreover, a company of 1,000
employees will generate nearly 2 million emails each year,21 with each
email containing a colossal amount of ESI: sender name, recipients, time
and date sent, the subject line, and information about attachments, to name
just a few of the metadata “fields”22 inherent in emails.23
14 Id.
15 United States v. Haymond, 672 F.3d 948, 952 n.10 (10th Cir. 2012) (quoting
BLACKS LAW DICTIONARY 1080 (9th ed. 2009)).
16 Ward, supra note 13, at 156.
17 Id.
18 Id.
19 Id.
20 William P. Barnette, Ghost in the Machine: Zubulake Revisited and Other Emerging
E-Discovery Issues Under the Amended Federal Rules, 18 RICH. J.L. & TECH. 1, 2 (2012)
(emphasis added). See also Transcript of Public Hearing on Proposed Amendments to the
Federal Rules of Civil Procedure Judicial Conference Advisory Committee on Civil Rules
U.S. CTS. 12627 (Nov. 7, 2013),
rules/public-hearings/civil-hearing-transcript-2013-11-07.pdf [hereinafter November
Transcript] (showing one large company has preserved 57.6% of all its email traffic in
connection with litigation, which equates to 203 terabytes of information, or “20 times [the
size] of the printed collection of the Library of Congress”).
21 Barnette, supra note 20.
22 A field or data field is “[a] defined area of a storage medium used to record an
individual piece of standardized data, such as t he author of a document, a recipient, the date
of the document, or any other piece of data common to most documents in an image

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