Tagged: Undue Burden or Expense

Lawyers for Civil Justice Plea for Change in ESI Preservation Rules; Report Submitted to Civil Rules Advisory Committee 0

Lawyers for Civil Justice Plea for Change in ESI Preservation Rules; Report Submitted to Civil Rules Advisory Committee

Lawyers for Civil Justice (“LCJ”) recently submitted a formal comment to the Advisory Committee on Civil Rules regarding problems related to the preservation of information in litigation. The comment, which can be found here, pleads for a change in the current approach to preservation of electronically stored information (“ESI”), in which preservation obligations are largely created by individual courts on an ad hoc basis. This approach, LCJ points out, creates heavy burdens on litigants: The cost of preservation is too high, the risk of spoliation sanctions is too great, and the impact of ancillary litigation proceedings on discovery disputes is too debilitating. Substantive issues in many cases have become overshadowed by issues of preservation.

The Sedona Conference’s Proportionality Guidelines Encourage Reasonable Limits on Scope of E-Discovery 0

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.