KMK Law Complex Litigation Blog

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.

Late television curmudgeon Andy Rooney is said to have observed that “nothing in fine print is good news.” Based on a recent decision from the Sixth Circuit, the fine print can be good news for some, and costly for others.

In today’s increasingly data-driven world, compliance with discovery requirements can mean production of hundreds of thousands of pages of documents, if not millions. Federal Rule of Evidence 502(d) was enacted to reduce the costs and risks associated with discovery, and to allow a federal court to protect the privilege of documents that have been inadvertently disclosed. Federal Rule of Evidence 502(d) provides that “a federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court – in which event the disclosure is also not a waiver in any other federal or state proceeding.”