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eDiscovery Trends: 2011 Predictions — By The Numbers
 

Comedian Nick Bakay”>Nick Bakay always ends his Tale of the Tape skits where he compares everything from Married vs. Single to Divas vs. Hot Dogs with the phrase “It's all so simple when you break things down scientifically.”

The late December/early January time frame is always when various people in eDiscovery make their annual predictions as to what trends to expect in the coming year.  We’ll have some of our own in the next few days (hey, the longer we wait, the more likely we are to be right!).  However, before stating those predictions, I thought we would take a look at other predictions and see if we can spot some common trends among those, “googling” for 2011 eDiscovery predictions, and organized the predictions into common themes.  I found serious predictions here, here, here, here and here.  Oh, also here and here.

A couple of quick comments: 1) I had NO IDEA how many times that predictions are re-posted by other sites, so it took some work to isolate each unique set of predictions.  I even found two sets of predictions from ZL Technologies, one with twelve predictions and another with seven, so I had to pick one set and I chose the one with seven (sorry, eWEEK!). If I have failed to accurately attribute the original source for a set of predictions, please feel free to comment.  2) This is probably not an exhaustive list of predictions (I have other duties in my “day job”, so I couldn’t search forever), so I apologize if I’ve left anybody’s published predictions out.  Again, feel free to comment if you’re aware of other predictions.

Here are some of the common themes:

  • Cloud and SaaS Computing: Six out of seven “prognosticators” indicated that adoption of Software as a Service (SaaS) “cloud” solutions will continue to increase, which will become increasingly relevant in eDiscovery.  No surprise here, given last year’s IDC forecast for SaaS growth and many articles addressing the subject, including a few posts right here on this blog.
  • Collaboration/Integration: Six out of seven “augurs” also had predictions related to various themes associated with collaboration (more collaboration tools, greater legal/IT coordination, etc.) and integration (greater focus by software vendors on data exchange with other systems, etc.).  Two people specifically noted an expectation of greater eDiscovery integration within organization governance, risk management and compliance (GRC) processes.
  • In-House Discovery: Five “pundits” forecasted eDiscovery functions and software will continue to be brought in-house, especially on the “left-side of the EDRM model” (Information Management).
  • Diverse Data Sources: Three “soothsayers” presaged that sources of data will continue to be more diverse, which shouldn’t be a surprise to anyone, given the popularity of gadgets and the rise of social media.
  • Social Media: Speaking of social media, three “prophets” (yes, I’ve been consulting my thesaurus!) expect social media to continue to be a big area to be addressed for eDiscovery.
  • End to End Discovery: Three “psychics” also predicted that there will continue to be more single-source end-to-end eDiscovery offerings in the marketplace.

The “others receiving votes” category (two predicting each of these) included maturing and acceptance of automated review (including predictive coding), early case assessment moving toward the Information Management stage, consolidation within the eDiscovery industry, more focus on proportionality, maturing of global eDiscovery and predictive/disruptive pricing.

Predictive/disruptive pricing (via Kriss Wilson of Superior Document Services and Charles Skamser of eDiscovery Solutions Group respective blogs) is a particularly intriguing prediction to me because data volumes are continuing to grow at an astronomical rate, so greater volumes lead to greater costs.  Creativity will be key in how companies deal with the larger volumes effectively, and pressures will become greater for providers (even, dare I say, review attorneys) to price their services more creatively.

Another interesting prediction (via ZL Technologies) is that “Discovery of Databases and other Structured Data will Increase”, which is something I’ve expected to see for some time.  I hope this is finally the year for that.

Finally, I said that I found serious predictions and analyzed them; however, there are a couple of not-so-serious sets of predictions here and here.  My favorite prediction is from The Posse List, as follows: “LegalTech…renames itself “EDiscoveryTech” after Law.com survey reveals that of the 422 vendors present, 419 do e-discovery, and the other 3 are Hyundai HotWheels, Speedway Racers and Convert-A-Van who thought they were at the Javits Auto Show.”

So, what do you think?  Care to offer your own “hunches” from your crystal ball?  Please share any comments you might have or if you’d like to know more about a particular topic.

State eDiscovery Rules: Wisconsin Adopts Amendments to Rules for eDiscovery
 

On November 1 of last year, we noted on this blog that Oklahoma had become the latest state to adopt amendments to their Rules of Civil Procedure, leaving only 14 states (including DC) to not have enacted any rules changes that address discovery of ESI as of January 1st of this year.

That’s because on January 1, Wisconsin became the latest state to adopt eDiscovery amendments to their Rules of Civil Procedure.  The amendments affect the following Wisconsin Statutes:

  • §§ 802.10(3)(jm) – Scheduling Order: The scheduling order may address the need for discovery of ESI, which focuses early attention on eDiscovery issues.
  • §§ 804.01(4m) – Discovery Conference: The parties must confer regarding discovery of ESI unless excused by the court (required meet and confer).  The required issues to be discussed include the scope of electronic discovery, the preservation of ESI, the format of production, and the costs of proposed discovery (including the extent to which such costs shall be limited).
  • §§ 804.08(3) – Business Records: Parties have the option to produce or allow access to business records in response to an interrogatory.
  • §§ 804.09(1) and (2) – Format of Production: Requesting party may specify “form” of production of ESI and, if no form is requested, information must be produced in the form in which it is ordinarily maintained or in a “reasonably usable form”.
  • §§ 804.12(4m) – Safe Harbor: Contains a safe harbor provision to protect a party who destroys information in good faith according to a routine records retention policy.
  • §§ 805.07(2) – Subpoena: Protect parties from the unreasonable burden of responding to subpoenas asking for ESI by enabling the producing party to produce information in the form in which it is ordinarily maintained or in a “reasonably usable form” and also by permitting testing or sampling of the information instead of inspection of copying.

The required meet and confer provision – §§ 804.01(4m) – was adopted, despite the opinion of the Judicial Council Evidence and Civil Procedure Committee that Wisconsin did not need a mandatory meet and confer rule.  The strong dissent expressed the concern that the requirement “has the potential to diminish both fairness and efficiency along with the potential of increasing the time and expense of litigation” and noted that, unlike the federal courts, Wisconsin state courts “do not have many cases involving a large number of documents and electronic discovery disputes” and that such a rule would “impose ‘significant added burden on litigants while yielding little benefit.'”  It concluded with a call to “judges, lawyers, and litigants from around the state to monitor this new mandate, and if it is not working, [to] petition the court for change.”

So, what do you think?  Wondering where your state stands?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Major Tours v. Colorel

Yesterday, we took a look at “Rajala v. McGuire Woods”, Judge David Waxse’s opinion regarding the applicability of Federal Rule of Evidence 502(d) and (e) in McGuire Woods’ request for a clawback provision for privileged documents.

The holiday week look back at cases continues with Major Tours, Inc. v. Colorel, 2010 WL 2557250 (D.N.J. June 22, 2010), which addresses whether a party may obtain a Protective Order relieving it of the duty to access backup tapes, even when that party’s failure to issue a litigation hold resulted in the data only being available on those backup tapes.

Major Tours appealed a 2009 Magistrate Judge’s order concluding that certain backup tapes were not reasonably accessible under Rule 26(b)(2)(B) and that the plaintiffs had not shown good cause to require their production under the seven factor test set forth in the Advisory Committee Notes to Rule 26(b)(2)(B). The Magistrate Judge made this determination despite finding that the defendant, Michael Colorel, had not instituted adequate litigation hold notices until several years after the duty to preserve had attached.

Upon appeal to U.S. District Court Judge Jerome Simandle, Major Tours claimed that the Magistrate Judge had not given “appropriate weight to the defendants’ culpability for the emails being inaccessible, given that the reason for the increased cost of recovery was the defendants’ failure to institute a timely and effective litigation hold.” and also argued that a party cannot rely on Rule 26(b)(2)(B) if that party’s negligence caused the inaccessibility of the requested data in the first place.

Judge Simandle first addressed “whether, as a matter of law, a protective order under Rule 26(b)(2)(B) can ever be granted to a party when the evidence is inaccessible because of that party’s failure to institute a litigation hold” and concluded that “no such bright line rule exists.”, finding that Colorel’s culpability in failing to preserve the information did not override application of the multi-factor good cause test under Rule 26(b)(2)(B). Judge Simandle cited the decision in Disability Rights Council of Greater Washington v. Washington Metropolitan Transit, 242 F.R.D. 139 (D.D.C. 2007), in which Magistrate Judge John M. Facciola considered the same issue and “concluded that the proper approach was to balance the defendants’ culpability as one factor in the seven factor analysis.”  Judge Simandle noted that “The Rules compel exactly this discretionary balancing of costs and benefits of discovery, not a bright line requirement of production, no matter how burdensome, how likely to succeed, or how necessary to the litigation, if a party fails to adequately preserve every byte of previously accessible data.”

As to whether the magistrate judge adequately considered defendants’ culpability, Judge Simandle found that he did and affirmed his order, noting that considering the volume of evidence produced by Colorel, the backup tapes were “likely to produce evidence of only marginal, cumulative benefit and at great expense” and that “this outweighed the slim likelihood of the discovery of non-cumulative evidence even if there was some unknown degree of negligent spoliation.”

So, what do you think?  Is this the most significant eDiscovery case of 2010?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Pension Committee

This holiday week, we’re taking a look back at some of the cases which have had the most significance (from an eDiscovery standpoint) of the year.  The first case we will look at is The Pension Committee of the Montreal Pension Plan v. Banc of America Securities, LLC, 29010 U.S. Dist. Lexis 4546 (S.D.N.Y. Jan. 15, 2010) (as amended May 28, 2010), commonly referred to as “Pension Committee”.

In “Pension Committee”, New York District Court Judge Shira Scheindlin defined negligence, gross negligence, and willfulness from an eDiscovery standpoint and cementing her status as the most famous “Judge Scheindlin” in New York (as opposed to “Judge Judy” Sheindlin, who spells her last name without a “c”).  Judge Scheindlin titled her 85-page opinion “Zubulake Revisited: Six Years Later”.  The

This case addresses preservation and spoliation requirements of the plaintiff and information which should have been preserved by the plaintiffs after the lawsuit was filed. Judge Scheindlin addresses in considerable detail, defining the levels of culpability — negligence, gross negligence, and willfulness in the electronic discovery context.

Issues that constituted negligence according to Judge Scheindlin’s opinion included:

  • Failure to obtain records from all employees (some of whom may have had only a passing encounter with the issues in the litigation), as opposed to key players;
  • Failure to take all appropriate measures to preserve ESI;
  • Failure to assess the accuracy and validity of selected search terms.

Issues that constituted gross negligence or willfulness according to Judge Scheindlin’s opinion included:

  • Failure to issue a written litigation hold;
  • Failure to collect information from key players;
  • Destruction of email or backup tapes after the duty to preserve has attached;
  • Failure to collect information from the files of former employees that remain in a party’s possession, custody, or control after the duty to preserve has attached.

The opinion also addresses 1) responsibility to establish the relevance of evidence that is lost as well as responsibility to prove that the absence of the missing material has caused prejudice to the innocent party, 2) a novel burden-shifting test in addressing burden of proof and severity of the sanction requested and 3) guidance on the important issue of preservation of backup tapes.

The result: spoliation sanctions against 13 plaintiffs based on their alleged failure to timely issue written litigation holds and to preserve certain evidence before the filing of the complaint.

Scheindlin based sanctions on the conduct and culpability of the spoliating party, regardless of the relevance of the documents destroyed, which has caused some to label the opinion as “draconian”.  In at least one case, Orbit One Communications Inc. v. Numerex Corp., 2010 WL 4615547 (S.D.N.Y. Oct. 26, 2010)., Magistrate Judge James C. Francis concluded that sanctions for spoliation must be based on the loss of at least some information relevant to the dispute.  It will be interesting to see how other cases refer to the Pension Committee case down the road.

So, what do you think?  Is this the most significant eDiscovery case of 2010?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Tips: SaaS and eDiscovery – More Top Considerations

Friday, we began talking about the article regarding Software as a Service (SaaS) and eDiscovery entitled Top 7 Legal Things to Know about Cloud, SaaS and eDiscovery on CIO Update.com, written by David Morris and James Shook from EMC.  The article, which relates to storage of ESI within cloud and SaaS providers, can be found here.

The article looks at key eDiscovery issues that must be addressed for organizations using public cloud and SaaS offerings for ESI, and Friday’s post looked at the first three issues.  Here are the remaining four issues from the article (requirements in bold are quoted directly from the article):

4. What if there are technical issues with e-discovery in the cloud?  The article discusses how identifying and collecting large volumes of data can have significant bandwidth, CPU, and storage requirements and that the cloud provider may have to do all of this work for the organization.  It pays to be proactive, determine potential eDiscovery needs for the data up front and, to the extent possible, negotiate eDiscovery requirements into the agreement with the cloud provider.

5. If the cloud/SaaS provider loses or inadvertently deletes our information, aren’t they responsible? As noted above, if the agreement with the cloud provider includes eDiscovery requirements for the cloud provider to meet, then it’s easier to enforce those requirements.  Currently, however, these agreements rarely include these types of requirements.  “Possession, custody or control” over the data points to the cloud provider, but courts usually focus their efforts on the named parties in the case when deciding on spoliation claims.  Sounds like a potential for third party lawsuits.

6. If the cloud/SaaS provider loses or inadvertently deletes our information, what are the potential legal ramifications?  If data was lost because of the cloud provider, the organization will probably want to establish that they’re not at fault. But it may take more than establishing who deleted the data. – the organization may need to demonstrate that it acted diligently in selecting the provider, negotiating terms with established controls and notifying the provider of hold requirements in a timely manner.  Even then, there is no case law guidance as to whether demonstrating such would shift that responsibility and most agreements with cloud providers will limit potential damages for loss of data or data access.

7. How do I protect our corporation from fines and sanction for ESI in the cloud?  The article discusses understanding what ESI is potentially relevant and where it’s located.  This can be accomplished, in part, by creating a data map for the organization that covers data in the cloud as well as data stored within the organization.  Again, covering eDiscovery and other compliance requirements with the provider when negotiating the initial agreement can make a big difference.  As always, be proactive to minimize issues when litigation strikes.

Let’s face it, cloud and SaaS solutions are here to stay and they are becoming increasingly popular for organizations of all sizes to avoid the software and infrastructure costs of internal solutions.  Being proactive and including corporate counsel up front in decisions related to SaaS selections will enable your organization to avoid many potential problems down the line.

So, what do you think?  Does your company have mechanisms in place for discovery of your cloud data?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Tips: SaaS and eDiscovery – Top Considerations
 

There was an interesting article this week regarding Software as a Service (SaaS) and eDiscovery entitled Top 7 Legal Things to Know about Cloud, SaaS and eDiscovery on CIO Update.com, written by David Morris and James Shook from EMC.  The article, which relates to storage of ESI within cloud and SaaS providers, can be found here.

The authors note that “[p]roponents of the cloud compare it to the shift in electrical power generation at the turn of the century [1900’s], where companies had to generate their own electric power to run factories.  Leveraging expertise and economies of scale, electric companies soon emerged and began delivering on-demand electricity at an unmatched cost point and service level.”, which is what cloud components argue that the SaaS model is doing for IT services.

However, the decision to move to SaaS solutions for IT services doesn’t just affect IT – there are compliance and legal considerations to consider as well.  Because the parties to a case have a duty to identify, preserve and produce relevant electronically stored information (ESI), information for those parties stored in a cloud infrastructure or SaaS application is subject to those same requirements, even though it isn’t necessarily in their total control.  With that in mind, the article looks at key eDiscovery issues that must be addressed for organizations using public cloud and SaaS offerings for ESI, as follows (requirements in bold are quoted directly from the article):

  1. Where is ESI actually located when it is in the ethereal cloud or SaaS application?  It’s important to know where your data is actually stored.  Because SaaS providers are expected to deliver data on demand at any time, they may store your data in more than one data center for redundancy purposes.  Data centers could be located outside of the US, so different compliance and privacy requirements may come into play if there is a need to produce data from these locations.
  2. What are the legal implications of e-discovery in the cloud? Little case law exists on the subject, but it is expected that the responsibility for timely preservation, collection and production of the data remains with the organization at party in the lawsuit, even though that data may be in direct control of the cloud provider.
  3. What happens if a lawsuit is in the US but one company’s headquarters is in another country? Or what if the data is in a country where the privacy rules are different?  The article references one case – AccessData Corp. v. ALSTE Technologies GMBH , 2010 WL 318477 (D. Utah Jan. 21, 2010) – where the German company ALSTE cited German privacy laws as preventing it from collecting relevant company emails that were located in Germany (the US court compelled production anyway).  So, jurisdictional factors can come into play when cloud data is housed in a foreign jurisdiction.

This is too big a topic to cover in one post, so we’ll cover the other four eDiscovery issues to address in Monday’s post.  Let the anticipation build!

So, what do you think?  Does your company have ESI hosted in the cloud?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Facemail Unlikely to Replace Traditional Email

In a November post on eDiscoveryDaily, we reported that Facebook announced on November 15 that it’s rolling out a new messaging system, including chat, text messaging, status updates and email (informally dubbed “Facemail”) that would bring messaging systems together in one place, so you don’t have to remember how each of your friends prefers to be contacted.  Many have wondered whether Facemail would be a serious threat to Google’s Gmail, Yahoo Mail and Microsoft Live Hotmail, given that Facebook has a user base of 500 million plus users from which to draw.  And, there was considerable concern raised by eDiscovery analysts that Facebook plans to preserve these messages, regardless of the form in which they are generated, forever.

However, Facemail isn’t likely to replace users’ current email accounts, according to an online poll currently being conducted by the Wall Street Journal.  More than 61 percent of over 4,001 participants who have taken the poll so far said they wouldn’t use Facebook Messages as their primary email service.  18.4 percent of voters said that they would use it as their primary email, with 20.5 percent indicating that they were not sure.  You can cast your vote here.  I just voted, so these numbers reflect “up-to-the-minute” poll results (as of 5:52 AM CST, Wednesday, December 08, that is).

Facebook CEO Mark Zuckerberg envisions the Facemail model of email, instant messaging and SMS text messages as a simpler, faster messaging model than email’s traditional subject lines and carbon copies, which Zuckerberg considers to be “antiquated”.

Whether Facemail develops as a serious threat to Gmail, Hotmail or Yahoo Mail (or even Microsoft Outlook or Lotus Notes) remains to be seen.  However, at least a couple of industry analysts think that it could become a significant development.

“A powerful, unified presence manager would also enable the user to express how he’d like to communicate, and to manipulate that ‘how’ and ‘when’ availability to different types of contacts,” industry analyst David Card stated in a post on GigaOm.com.  “If Facebook establishes Messages as a user’s primary tool to manage presence across multiple communications vehicles, it would be an incredibly sticky app, with huge customer lock-in potential.”

Gartner analyst Matt Cain told eWEEK.com, “It will have little impact at first on the public portal email vendors because it is a barebones email service. But if Facebook makes it the equivalent of these other services, it will have a significant deleterious impact on competing email services”.

As stated in the earlier post, it’s important to have a social governance policy in place to not only address new mechanisms such as Facemail, but all social media mechanisms that might be in use by your employees.

So, what do you think?  Do you plan to consider using Facemail as your primary email service?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Best Practices: Data Mapping for Litigation Readiness
 

Federal Rule 26(f)–the Meet and Confer rule–requires the parties in litigation to meet at an early stage to discuss the information they have and what they will share.   The parties must meet “at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b)”, which states that the “judge must issue the scheduling order…within the earlier of 120 days after any defendant has been served with the complaint or 90 days after any defendant has appeared.”.

That means the meet and confer is required 90-100 days after the case has been filed and, at that meeting the parties must disclose to each other “a copy of, or a description by category and location of, all documents, electronically stored information and tangible things that are in the possession, custody or control of the party and that the disclosing party may use to support its claims or defenses” (Rule 26(a)(1)(A)(ii)).  That’s not much time to develop a thorough understanding of what data may be potentially responsive to the case.

The best way for organizations to address this potential issue is proactively, before litigation even begins, by preparing a data map.  As the name implies, a data map simply provides a guide for legal and IT to the location of data throughout the company and important information about that data, such as the business units, processes and technology responsible for maintaining the data, as well as retention periods for that data.  An effective data map should enable in-house counsel to identify the location, accessibility and format of potentially responsive electronically stored information (ESI).

Four tips to creating and maintaining an effective data map:

  • Obtain Early “Buy-In”: Various departments within the organization have key information about their data, so it’s important to obtain early “buy-in” with each of them to ensure full cooperation and a comprehensive data map,
  • Document and Educate: It’s important to develop logical and comprehensive practices for managing data and provide regular education to employees (especially legal) about the organization’s data management policies so that data is where it is supposed to be,
  • Communicate Regularly: Groups need to communicate regularly so that new initiatives that may affect existing data stores or create new ones are known by all,
  • Update Periodically: Technology is constantly evolving, employees come and go and terminologies change.  Data maps must be reviewed and updated regularly to stay accurate.  If you created a data map two years ago and haven’t updated it, it probably doesn’t address new social media sources.

Preparing and maintaining a data map for your organization puts you in a considerably better position to respond quickly when litigation hits.

So, what do you think?  Does your organization have a data map?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Facemail and eDiscovery

Email is dead.

So says Facebook founder Mark Zuckerberg.  “It’s too formal,” he declared, announcing his company’s new messaging service last week in San Francisco.

Facebook announced last week that it’s rolling out a new messaging system, including chat, text messaging, status updates and email (surprise!).  Zuckerberg touts it as a way of bringing messaging systems together in one place, so you don’t have to remember how each of your friends prefers to be contacted.  Will the integrated product (informally dubbed “Facemail”) that some have called “Gmail killer” be a serious threat to Gmail, MSN and Yahoo Mail?  Maybe.  With 500 million plus users, Facebook certainly has a head start towards a potentially large user base.

However, some caveats to consider from a business standpoint:

  1. Facemail messages will be clustered by sender instead of by subject, which they consider to be “antiquated”.  May be great from a social standpoint, but not so good when you need to follow the thread of a conversation with multiple people.
  2. Unified messaging is not an entirely new concept.  Just last year, Google introduced Google Wave, designed to “merge key features of media like e-mail, instant messaging, wikis, and social networking”.  Earlier this year, Google announced plans to scrap Google Wave after it failed to gain a significant following.  It will be interesting to see whether Facebook can succeed where Google failed.
  3. From an eDiscovery perspective, the potential concern is that Facebook plans to preserve these messages, regardless of the form in which they are generated, forever.  So, if your company has a retention policy in place, these communications will fall outside of that policy.

Is it time to panic?  It might be tempting to overreact and ban the use of Facemail and other outside email and social media sites, but that seems impractical in today’s social media climate.

A better approach is to have a policy in place to govern use of outside email, chat and social media that covers what employees should do (e.g., act responsibly and ethically when participating in online communities), what employees should not do (e.g., disclose confidential information, plagiarize copyrighted information, etc.) and the consequences for violating the policy (e.g., lost customers, firings, lawsuits, etc.).  We will talk more about a social governance policy in an upcoming post.  In the meantime, here is a reference to our September post for information on requesting information from Facebook via civil subpoena.

So, what do you think?  Does your company have a social governance policy?  Please share any comments you might have or if you’d like to know more about a particular topic.

P.S. – So, what happened to the architect behind Google Wave, Lars Rasmussen?  He just joined Facebook.  Interesting, huh?  🙂

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.