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Judicial Embrace of Proportionality Paves the Way for More Targeted Collections

Created on November 29, 2011

Proportionality is certainly not a new concept in e-discovery.  If you aren't familiar with the proportionality rule, it essentially dictates that the value of requested electronically stored information (ESI) must be proportionate to the resources required for retrieving it (FRCP Rule 26(b)(2)(C)).  Interestingly, judges appear to be embracing proportionality – or at least discussing it - more now than ever before.  It was among the hot topics with judges, lawyers and e-discovery experts at the Georgetown Law Advanced eDiscovery Institute earlier this month.

What accounts for all the recent proportionality chatter?

It is now widely recognized that e-discovery costs are beginning to cripple the litigation process.  Attorney Dave Walton, co-chair of Cozen O'Connor's E-Discovery Task Force, recently wrote of the state of e-discovery: “Clients are being forced to settle cases because the ESI costs alone make it too expensive to fight. And, all the while, everyone lives in fear of the next big 'spoliation' case."  Walton's sentiment is no doubt shared by lawyers and judges throughout the country.  However, he believes it's time for new, less fearful approaches.

In his article on the benefits of targeted collections, Walton says most lawyers are not taking full advantage of the proportionality rule and as a result are incurring far more costs than what is necessary.  He suggests the “better safe than sorry" approach which leads to over collection is misguided in a judicial climate that has become more supportive to smarter, cheaper e-discovery strategies.  

His advice: preserve broad, but collect small.  Technology now enables parties to gain greater visibility into data prior to actually collecting it, allowing for a more efficient and less costly e-discovery process.  Walton breaks the approach down into smaller points:

-          Preserve Broadly:  Rules regarding preservation are incredibly ambiguous so it's best to be cast a wide preservation net to ensure defensibility.  Fortunately, preservation is far less expensive than collection and review.

-          Interview Custodians: When it comes to tracking down only responsive ESI, it shouldn't be a surprise that custodians themselves harbor the most valuable information and are the best suited to point attorneys in the right direction.  Conducting substantive custodian interviews ensures that key ESI doesn't fall through the cracks and helps attorneys hone in on the truly relevant material for collection.

-          Cooperate and Communicate: It goes against the instincts of many lawyers, but in e-discovery it's absolutely crucial to be transparent with the opposing side right off the bat.  Communicating detailed e-discovery plans in writing to opposing counsel and the judge, especially when you are pursuing a very targeted collection strategy, is necessary because it forestalls problems down the road and allows for adjustments before effort and time have been wasted and costs have been incurred.  Walton also notes that “judges are far more amenable to limiting discovery at the beginning of the case if you are willing to be proactive."

-           Consider Collection Options: Once the ESI has been funneled down, it is important for parties to consider different collection strategies to present to opposing counsel and the judge.   For instance, Walton says sometimes it's beneficial to collect and produce ESI in stages, starting with only the most relevant ESI.  The key benefit to this approach is that it allows a party to show a judge that a production request is unreasonably cumulative or duplicative prior to the costly collection, review and production of all requested ESI.

-          Trial Preparation: Sifting through mountains of electronic data while prepping for a trial is the stuff of attorney nightmares.  In the rare event that a case does go to trial, a targeted collection helps parties stay focused on only the crucial ESI that will support the key arguments.

While changes to the FRCP are being discussed to add clarity to e-discovery requirements, the current rules are decidedly nebulous.  Courts have different interpretations of the existing guidelines and you'll rarely come across two judges who see things precisely the same way.  Nevertheless, courts are generally in agreement that e-discovery costs are becoming a problem.  It's up to the litigants themselves to think outside the box, utilize existing technology and work cooperatively to craft fair and reasonable e-discovery parameters.

Learn more about targeted collections at Exterro's upcoming webcast Proportionality vs. Defensibility in E-Discovery Collections