Tagged: Sedona Principles

Planning Ahead: The Critical Importance of Early Agreement on the Proportional Scope of Preservation

In M.A. v. Wyndham Hotels & Resorts, Inc., and H.H. v. G6 Hospitality LLC, the United States District Court for the Southern District of Ohio, Eastern Division, rejected plaintiffs’ objections to the Magistrate Judge’s decision excluding certain types of electronically stored information (ESI) from defendants’ duty to preserve. In doing so, the District Court emphasized the fact that the parties had spent a considerable amount of time addressing issues related to ESI and that plaintiffs had consented to the exclusions during a status conference with the Magistrate Judge. In adopting the Magistrate Judge’s recommendation, the District Court based its decision on “guiding principles of proportionality, default standards in other jurisdictions, and current trends in ESI discovery.” Plaintiffs filed related complaints against several hotel locations and parent companies pursuant to the Trafficking Victims Protection Reauthorization Act (TVPRA). In April 2019, plaintiffs sent letters to defendants reminding them of their duty to preserve potentially discoverable ESI. A number of discovery disputes ensued related to proposed confidentiality and ESI orders. While this decision also addresses issues related to confidentiality, the primary focus of this post is the dispute regarding defendants’ obligation to preserve certain types of ESI. In particular, plaintiffs objected to an oral decision rendered by the Magistrate Judge finding that defendants were not obligated to preserve:...

Show Some Respect: International Privacy and Comity Concerns May Become More Important in Foreign E-Discovery Disputes

Twenty-five years ago in Aerospatiale v. District Court of Iowa the United States Supreme Court admonished lower courts that international comity compels them to “take care to demonstrate due respect for any special problem confronted by the foreign litigant on account of its nationality or the location of its operations, and for any sovereign interest expressed by a foreign state.” And for the last twenty-five years, courts generally have not heeded that advice, giving short-shrift to the idea that foreign privacy or data protection laws must be enforced if the result is to limit discovery of relevant information. At the urging of lawyers and several influential organizations, that could finally be changing.

The Sedona Conference’s Proportionality Guidelines Encourage Reasonable Limits on Scope of E-Discovery

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.