Placing limits on eDiscovery isn’t new. It has been nearly 4 years since amendments to the Federal Rules of Civil Procedure took effect, significantly impacting the discovery process. One of the most important revisions was to Rule 26(b)(1), which provided that parties may obtain electronically stored information (“ESI”) that is non-privileged, relevant and proportional to the needs of the case. The amended rule clarifies that courts must look at the cost and effort involved in the parties’ discovery requests and parties must provide this information in detail. Despite the amended rule, many companies seem to err on the side of over-collecting and over-producing data, which makes eDiscovery more time-consuming, expensive and inefficient. The solution is for attorneys and eDiscovery service providers to stress with clients how much information is required to comply with federal rules, while organizations must be more receptive to the guidance of experts.
The Sedona Conference has outlined several principles regarding the proportionality requirement. These represent how organizations should view data collection and what points attorneys and service providers need to emphasize in advising companies about their discovery obligations. These include:
- “The burdens and costs of preserving relevant ESI should be weighed against the potential value and uniqueness of the information.” Clients should not require that data be collected from “every custodian” without weighing these factors.
- “Discovery should focus on the needs of the case and be obtained from the most convenient, least burdensome and least expensive sources.” Just because a client can afford the expense of discovery, doesn’t mean it is appropriate.
- “Undue burden, expense or delay resulting from a party’s action or inaction should beweighed against that party.” When data is over-collected or over-produced, who is accountable for this? Attorneys should take care they are meeting their own ethical obligations in advising clients.
- “The application of proportionality should be based on information rather than speculation.” Attorneys and service providers must provide specifics on the time, cost and burden involved in data collection, so clients make informed decisions.
- “Technologies to reduce cost and burden should be considered in the proportionality analysis.” Clients must consult experts to evaluate technologies and how they can be used to achieve an economical, efficient and high-quality result.
The final bullet is a key point about employing technology. The amount and variety of data types has led to significant improvements in tools available to collect, review and process information. The use of Early Case Assessment, data analytics, and culling techniques such as de-duplication, filtering, advanced keyword searching and email threading can significantly reduce the size of data sets. Yet, some clients fail to make full use of these technologies. Instead, they are still relying on the use of outdated methods.
Ultimately, clients must cede some control to those with deep expertise in legal and technology issues. Organizations should consult experts to advise them through every step of the process, from forensic collections to data hosting and managed review. Working closely with lawyers and technologists at the outset of a matter can help ensure compliance with the federal rules as well as reduce the burdens on all the parties.
Contact the CDS Advisory Services team to discuss how we can streamline your next eDiscovery project.