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...
• Pages: 153-200

“THE PERFECT IS THE ENEMY OF THE GOOD:”1

THE CASE FOR PROPORTIONALITY RULES INSTEAD OF

GUIDELINES IN CIVIL E-DISCOVERY

LEAH M. WOLFE*

I. INTRODUCTION

Rules—not 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 rules—in the form of a

mandated proportionality analysis used for all discovery planning and

discovery disputes—must replace the old jumble of guidelines that

entrenches civil litigation in a costly, time-consuming, and inefficient

quagmire.5

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

Ohio.

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,

GOODREADS, http://www.goodreads.com/quotes/215866-le-mieux-est-l-ennemi-du-bien-the-

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.

154 CAPITAL UNIVERSITY LAW REVIEW [43:153

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),

http://www.dallasnews.com/news/crime/headlines/20111030-overwhelming-volume-of-

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).

2015] CIVIL E-DISCOVERY 155

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

file’s 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

BLACK’S 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. 126–27 (Nov. 7, 2013), http://www.uscourts.gov/uscourts/RulesAndPolicies/

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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