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Industry Trends

eDiscovery Trends: Sedona Conference Commentary on Proportionality
 

Last month, The Sedona Conference® made available its Commentary on Proportionality in Electronic Discovery, which is a project of The Sedona Conference Working Group on Electronic Document Retention & Production (WG1).  The commentary is initially being published as a "public comment version", giving participants in the legal industry an opportunity to provide comments that the editors will review and incorporate edits where appropriate into the final version.  A copy of the PDF publication can be downloaded here.

The commentary discusses the origins of the doctrine of proportionality, provides examples of its application and proposes principles for guidance, providing “a framework for the application of the doctrine of proportionality to all aspects of electronic discovery”.  Among other things, the publication identifies six Principles of Proportionality intended to provide that framework, using existing (Federal) rules and case law to support each principle.  These common-sense principles are:

  1. The burdens and costs of preservation of potentially relevant information should be weighed against the potential value and uniqueness of the information when determining the appropriate scope of preservation.
  2. Discovery should generally be obtained from the most convenient, least burdensome, and least expensive sources.
  3. Undue burden, expense, or delay resulting from a party’s action or inaction should be weighed against that party.
  4. Extrinsic information and sampling may assist in the analysis of whether requested discovery is sufficiently important to warrant the potential burden or expense of its production.
  5. Nonmonetary factors should be considered when evaluating the burdens and benefits of discovery.
  6. Technologies to reduce cost and burden should be considered in the proportionality analysis.

After stating the six principles above, the commentary goes on to discuss specific rules and case law that supports issues to consider such as the availability of information from other sources, waiver and undue delay, and burden versus benefit.  It then goes on to discuss the existing rules and case law that supports each principle.

To submit a public comment, you can download a public comment form here, complete it and fax(!) it to The Sedona Conference® at 928-284-4240.  If, like me, you’re opposed to using 1990s technology to submit your comments, the publication also notes that you can also submit feedback by emailing them at rgb@sedonaconference.org.

So, what do you think?  Have you encountered any cases where proportionality of discovery requests are at issue? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: CGOC Information Governance Benchmark Report

Last month, at the EDRM Mid-Year Meetings, the Information Management Reference Model (IMRM) team within EDRM presented a status report for their project (as all of the project teams do during these meetings).  As a part of that presentation, the team presented findings from the first survey conducted by the Compliance, Governance and Oversight Council (CGOC) in collaboration with the IMRM of legal, records management (RIM) and IT practitioners in Global 1000 companies.  You can request a copy of the report here.

According to the CGOC report, there was an even distribution of respondents between legal, RIM and IT.  Just a few of the very interesting findings include:

    • Ineffective Disposal of Data: 75% of respondents identified the inability to defensibly dispose of data as the greatest challenge, leaving “massive” amounts of legacy data,
  • “People Glue” Compliance Processes: 70% of respondents depend on “liaisons and people glue” to support discovery and regulatory obligations within information management (as opposed to reliable and repeatable systems and processes),
  • Disconnect Between Legal, RIM and IT: There are big gaps between retention schedule development, legal hold communication, and information management.  Some key stats:
    • 77% said their retention schedules were not actionable as is or could only be applied to paper,
    • 75% of schedules included only regulatory record keeping requirements or long-range business information,
    • 66% did not describe legal holds by the records associated with them, and
    • 50% of IT departments never used the retention schedule when disposing of data.
  • Who’s In Charge?: Legal and RIM identified RIM as the organization responsible for “information management and disposal” whereas IT considered themselves responsible for this function.

These are just a handful of findings in this report, which clearly shows that most large organizations still feel that there is still much work to be done to achieve an effective information governance program.  The CGOC (and IMRM) have done a terrific job at compiling a comprehensive and informative report that illustrates the current state of affairs of information management in the corporate world.  Request your copy of the report to learn more!

So, what do you think?  How is your organization managing information governance?  Is it facing similar issues? Please share any comments you might have or if you’d like to know more about a particular topic.