eDiscovery Daily Blog

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.