In our increasingly technological society, parties are encountering a greater demand for electronically stored information (“ESI”) in litigation. This demand has led to the adoption of a concept called proportionality. Proportionality evaluates the costs and benefits of e-discovery, to determine if discovery production is warranted.
The rule of proportionality is part of the Rule 26 duty to disclose. Fed. R. Civ. P. 26. Where e-discovery production causes undue burden to the producing party, the requesting party may still obtain the discovery by showing good cause. Fed. R. Civ. P. 26(b)(2)(B). Rule 26(b)(2)(C) limits good cause production, with 26(b)(2)(C)(iii) essentially articulating the “principle of proportionality.” Wood v. Capital One Services, LLC, 2011 U.S. Dist. LEXIS 61962, *9 (N.D.N.Y. 2011).
Rule 26(b)(2)(C)(iii) permits courts to limit discovery where the burden of proposed discovery outweighs its likely benefit, considering: (1) the needs of the case; (2) the amount in controversy; (3) the parties’ resources; (4) the importance of the issues at stake in the action; and (5) the importance of the discovery in resolving the issues. Fed. R. Civ. P. 26(b)(2)(C)(iii). The metrics set forth in Rule 26(b)(2)(C)(iii) provide courts with significant flexibility. The Sedona Conference, The Sedona Conference Commentary on Proportionality in Electronic Discovery, 11 Sedona Conf. J. 289 (2010).
Court Considerations in Applying the Rule
Courts begin their proportionality analysis by determining if the requested discovery is sufficiently relevant. See Wood, 2011 U.S. Dist. LEXIS 61962 at *10. Courts are reluctant to order the production of documents with “marginal” relevance when the producing party already provided extensive discovery. Id. at *38.
Courts also consider the amount in controversy. In Peskoff, a $33,000 discovery request did not “dwarf the final recovery” when the plaintiff claimed $2.5 million in damages. Peskoff v. Faber, 251 F.R.D. 59, 60 (D.D.C. 2008). Alternatively, in Wood, the court denied a discovery request “in excess of $5,000,000” where the amount in controversy was “exceedingly modest.” Wood, 2011 U.S. Dist. LEXIS 61962 at *21-38. When estimating discovery costs, it’s important to factor in costs beyond the technical retrieval of ESI, such as costs of privilege reviews and non-monetary costs like invasion of privacy. Chen-Oster v. Goldman, Sachs & Co., 285 F.R.D. 294, 306 (S.D.N.Y. 2012).
Practitioner Tips for Making the Most of Proportionality
With Rule 26 and court guidance in mind, the following techniques can help parties use proportionality to their favor.
Base discovery objections on identifiable concerns.
In Kleen, the defendants argued that a certain time frame of production was too broad, suggesting a time period that was two years shorter. Kleen Prods. v. Packaging Corp. of Am., 2013 U.S. Dist. LEXIS 3016, *26-30 (N.D. Ill. 2013). The court faulted the defendants for providing “no specifics” as to why the difference of two years was less burdensome. Id. at 27.
Be careful to avoid user error.
When it comes to ESI, the party in error may have to foot the bill for reproduction. In PSEG Power N.Y., Inc. v. Alberici Constructors, Inc., due to a technical error, the plaintiffs “divorced” attachments from accompanying emails. 2007 U.S. Dist. LEXIS 66767, *6-7 (N.D.N.Y. 2007). While the process of remarrying the documents was “formidable and costly,” the court required the plaintiffs to pay for reproduction. Id. at *7, *37.
Do not demand perfect production.
“The standard for the production of ESI is not perfection.” Chen-Oster, 285 F.R.D. at 306. Instead, a responding party must use reasonable measures to produce complete and accurate ESI. Id. In Chen-Oster, the court rejected a party’s ESI proposal when it included exaggerated costs for “quality assurance” review. Id. at 307-08.
Bring your geek to court.
IT professionals are great assets in validating production costs. In Halliburton, the producing party supported their claim of undue burden with a professional’s explanation of the discovery production process in “excruciating, but highly educational and useful” detail. United States v. Halliburton Co., 272 F.R.D. 235, 240 (D.D.C. 2011). The court implicitly accepted the expert’s explanation in the decision and ruled in that party’s favor. Id. at 240-41.
Challenge unreasonable requests.
Parties should object to e-discovery requests that are unreasonably broad. A request for documents extending, for example, “backward to the dawn of time” was found to be “patently absurd” and denied. Kleen, 2013 U.S. Dist. LEXIS 3016 at *31.
In the adversarial field of litigation, a focus on reasonability and cooperation can go a long way. Given the express restrictions on e-discovery in Federal Rule of Civil Procedure 26(b)(2), parties should make an effort to consider ways to produce and request e-discovery in a reasonable manner. Through these principled practices, parties can encourage discovery production that is fair for everyone involved.
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