Five Proportionality Principles That Can Reduce E Discovery Costs and Burdens
| Jurisdiction | Utah,United States |
| Citation | Vol. 25 No. 5 Pg. 26 |
| Pages | 26 |
| Publication year | 2012 |
Vol. 25, No. 5. 26. Five Proportionality Principles That Can Reduce e Discovery Costs and Burdens
Volume 25 No. 5
Sep/Oct 2012
Talk to most any enterprise about legal issues and invariably the subject of eDiscovery will come up as a thorny point. These discussions typically focus on the high costs of eDiscovery, particularly for data preservation and document review. Such costs and the inevitable delays that accompany the discovery process provide ample justification for organizations to be on the alert for ways to address these issues.
As a solution to these costs and delays, the eDiscovery cognoscenti are emphasizing the concept of "proportionality." Proportionality typically requires that the benefits of discovery be commensurate with its corresponding burdens. See Eisai Inc. v. Sanofi-Aventis U.S., LLC, No. 08-4168 (MLC), 2012 WL 1299379, at *6 (D.N.J. Apr. 16, 2012) (invoking proportionality standards to deny the majority of plaintiff's production requests). Under the Federal Rules of Civil Procedure ("Rules"), the directive that discovery be proportional is found in Rule 26. See Fed. R. Civ. P. 26. In what may be a surprise to some practitioners, Rule 26(b)(2) (C) empowers courts to restrict the liberal bounds of federal discovery practice. For example, discovery must be limited where requests are unreasonably cumulative or duplicative, the discovery can be obtained from an alternative source that is less expensive or burdensome, or the burden or expense of the discovery outweighs its benefit.
This provision is reinforced by Rule 26(g), which imposes an express certification obligation on counsel to engage in proportional discovery or face sanctions. An additional proportionality provision specific to eDiscovery is found in Rule 26(b)(2)(B). That rule limits the discovery of electronically stored information (ESI) such as backup tapes that may not be "reasonably accessible because of undue burden or cost." Finally, Rule 26(c) provides an enforcement mechanism for these provisions. Parties may seek protective orders under this provision, which limits or even proscribes discovery that causes "annoyance, embarrassment, oppression, or undue burden or expense."
While proportionality standards were underused for years after they were first included in the Rules, they are now being championed by various district and circuit courts. As more opinions are issued that analyze proportionality, several key principles are becoming apparent in this developing body of jurisprudence. To better understand these principles, it is instructive to review some of the top proportionality cases issued this year and last. These cases and the proportionality standards they espouse provide a roadmap of best practices which, if followed, will help courts, clients...
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