The Sedona Conference’s® most recent publication, Commentary on Proportionality in Electronic Discovery, sets forth six guidelines for assessing whether a discovery request or obligation should be limited because it is disproportionate to the likely benefit. The Sedona Conference® noted that courts have often failed to apply the proportionality doctrine when warranted and that it is increasingly important for courts to do so given the volume and expense associated with discovery of ESI. The Federal Rules of Civil Procedure provide ample authority for, and in some instances mandate, the application of a proportionality analysis. See Rule 26(c), Rule 26(b)(2)(C), and Rule 26(g). The New Jersey Court Rules are closely modeled after the Federal Rules in this respect. See R. 4:10-2(g), 4:10-3. The Sedona Conference’s® six guidelines for assessing proportionality expound upon the principles in the rules and, in one instance, would expand their application:
- 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. This Guideline, along with The Sedona Conference’s® recent Commentary on Legal Holds, encourages parties to determine the appropriate scope and manner of presentation by considering the associated burdens and costs versus the potential value and uniqueness of the information. The Guidelines likewise encourage courts to apply proportionality principles when evaluating whether a party has fulfilled its preservation obligation. While this approach is reasonable, parties may be unlikely to unilaterally decide not to preserve a particular source in light of the associated cost and/or burden until courts engaging in hindsight evaluation routinely do so, particularly given the heavy sanctions that some courts have imposed for failure to adequately preserve ESI.
- Discovery should generally be obtained from the most convenient, least burdensome, and least expensive sources. This Guideline acknowledges the reality that it is unlikely that any one source is the least burdensome, most convenient and least costly. As a result, the Guidelines emphasize that these are factors that should be weighed. The Guidelines also suggest that phasing discovery, beginning with the most accessible, least expensive sources should be considered as a means of helping the parties and court determine whether additional discovery from more burdensome and expensive sources is necessary and/or can be effectively limited.
- Undue burden, expense, or delay resulting from a party’s action or inaction should be weighed against that party. Courts should disregard any undue burden or expense that results from a responding party’s own conduct or delay. For example, a party’s failure to properly preserve a less burdensome source of relevant information should not weigh in favor of limiting that party’s obligation to produce from a more burdensome source. Similarly, a party’s failure to engage in a meaningful meet and confer on the form of production or search criteria, for example, should weigh against a responding party’s argument that production using a particular form or search criteria would be burdensome. Not surprisingly, these suggested principles echo The Sedona Conference’s® focus on encouraging cooperation and early attention to issues related to ESI.
- 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. This Guideline addresses the practical reality that the parties may often not know what information would be retrieved from a source until much of the costs and burdens have been incurred. As a result, in assessing the importance of the information requested and whether the cost is disproportionate to its relevance, courts should consider sampling the proposed source. Courts should also consider extrinsic evidence such as whether a key player created information, whether any information already produced gives rise to an inference that the requested information would be important, and whether the information is unique or was created contemporaneously with the key operative facts.
- Nonmonetary factors should be considered when evaluating the burdens and benefits of discovery. While these may be irrelevant in most civil litigation, in those asserting constitutional or statutory rights, the factors will generally favor broader discovery.
- Technology to reduce cost and burden should be considered in the proportionality analysis. In considering the associated burdens and costs, technology available to reduce costs and burdens should be considered. In some instances, the cost of the available technology itself will outweigh the benefit.