Like most procedural laws guided by the Federal Rules of Civil Procedure (FRCP), one's actions need not be perfect. As Judge Waxse reminded his audience at LegalTech NY 2012, the standard in e-discovery isn't perfection, only reasonableness. In other words, courts aren't asking clients to get everything right every time; they're asking litigants to show that they made a reasonable effort to get it right.
Even with Judge Waxse's endorsement, the term “reasonable" is loaded with ambiguity that leaves many parties scratching their heads; however, by analyzing case law, the definition of “reasonableness" becomes much clearer. A good example is seen in the recent case, Bradley B. Larsen vs. Coldwell Banker Real Estate Corp (C.D. Ca. Feb. 2, 2012). In this case, the plaintiffs felt that the defendant's e-discovery efforts were insufficient, alleging that the “Defendants have failed to comply" with the court's order. Consequently, the plaintiffs filed for a motion to compel a “re-do," or second production, of the defendants' electronically stored information (ESI), specifically requesting that a neutral third party “re-collect and process defendants ESI."
Citing the The Sedona Conference Principles, the court deemed that “the requesting party has the burden on a motion to compel to show that the responding party's steps to preserve and produce relevant electronically stored information were inadequate."
To asses whether the responding party met its burden, the court applied a proportionality test under FRCP 26(b)(2), which mandates that the court “limit the frequency or extent of discovery otherwise allowed…if it determines that the burden or expense of the proposed discovery outweighs its likely benefit," while considering the…
- Needs of the case
- Amount in controversy
- Parties resources
- Importance of the issues at stake in the action
- Importance of the discovery in resolving the issues
The court denied the plaintiff's motion to compel re-production. In coming to this decision, the court found that the plaintiffs failed to prove that the defendants were unreasonable in their e-discovery efforts, thus did not follow the court's original discovery order. In short, the court determined that the defendant's response to the original order was adequate and that the burden of the second production did not outweigh the likely benefit.
- The Burden: Over 1,000 hours of processing, collection and review of original production, costing more than $100,000.
- The Benefit: Out of 9,000 pages produced by the defendants, the court only cited two examples of when ESI was found to be possibly missing.
E-Discovery Beat's Takeaway
Larson does a tremendous job of emphasizing the importance of reasonableness and proportionality in e-discovery. While some parties continue to use e-discovery as a sword rather than an olive branch, judges are becoming increasingly hostile to overly broad production requests or motions to compel subsequent productions when the requesting party is unable to show that the responding party acted in an unreasonable manner. When assessing whether to bring a motion to compel production for inadequacy, parties must consider the reasonableness standard and look to the principles of proportionality before filing with the court. It will save a lot of time and money.
Learn more about recent e-discovery case law by watching Exterro's recent on-demand webcast titled, "2012 E-Discovery Case Law Wake-Up Call: No regrets, just lessons learned..." To watch click here.
Mike Hamilton, J.D. is a Sr. E-Discovery Analyst at Exterro, Inc., focusing on educating Exterro customers, prospects and industry experts on how to solve e-discovery issues proactively with technology. His e-discovery knowledge, legal acumen and practical experience give him a valuable perspective on bridging the gap between IT and legal teams. You can find him on Google+, Twitter and Linkedin.