Page 8 - E-Discovery

S8 | MONDAY, OCTOBER 6, 2014 | E-Discovery
| NYLJ.COM

Eliminating Asymmetrical Discovery
the law often causes potential litigants who
operate in multiple jurisdictions to default to
a standard of over-preservation, essentially
Merits
preserving everything although the law does
To Resolve Disputes on the not require it.13
The proposed amendment to Rule 37(e)
rejects authorization of sanctions for loss
of ESI resulting from negligence or gross

negligence, and requires “intent to deprive
another party of the information’s use in the
litigation.”14 Establishing a uniform national
standard is intended to encourage reasonable
(not perfect) preservation efforts:
The public comments credibly demon-
strate that persons and entities over-pre-
serve ESI out of fear that some might be
lost, their actions with hindsight might
be viewed as negligent, and they might
be sued in a circuit that permits adverse
inference instructions or other serious

sanctions on the basis of negligence.
Resolving this circuit split with a more
uniform approach to lost ESI remains a
primary objective of the Subcommittee.15

Preservation: Local Rules and Guidelines
Governing Preservation. Both federal and
state courts have undertaken initiatives to
address over-preservation. A program adopt-
ed in the U.S. District Court for the Southern
District of New York expects parties to discuss
potentially relevant ESI and methods for pres-
ervation.16 Similarly, the New York State Com-
mercial Division provides that parties confer
regarding preservation of potentially relevant
and reasonably accessible ESI.The purpose
17
of these initiatives is to encourage parties to CK
reasonably limit the scope of preservation.18
STO
Consistent with this purpose, discovery I
guidelines recommend types of ESI to be
excluded from preservation. The Seventh
Circuit limits the need to preserve certain
ESI including deleted data, temporary iles, gigabyte, with total production cost reach- to force settlements and prevent adjudication
frequently updated metadata, duplicative BY GEORGE A. ZIMMERMAN ing as high as $27 million.5 Not included in of cases on the merits.
backup data, and other forms of ESI requir- AND GIYOUNG SONG
this estimate are preservation costs, which In proposing to amend the federal rules,
ing “extraordinary afirmative measures.”19 extend to matters that never reach discovery the Civil Rules Advisory Committee noted:
The District Court of Delaware excludes cer- T he public comments to the proposed and even to situations where no complaint “Excessive discovery occurs in a worrisome
tain instant messages and voice messages,20 amendments to the Federal Rules of Civil is ever iled. Preservation triggers internal number of cases,” particularly those that are
and the Northern District of California limits Procedure “made clear that the explo-
costs, including attorney, paralegal, IT per- “complex, involve high stakes and generate
preservation requirements by date restric- sion of ESI will continue and even acceler- sonnel, and other employee time, as well as contentious adversarial behavior.”The Duke
10
tions, and by excluding inaccessible data and ate,” and “the litigation challenges created costs to store archived data, and purchase Subcommittee, which proposed the amend-
ESI that may be relevant but whose costs by ESI . will increase, not decrease.”1 Judges and license applications and hardware to ments to Rule 26 governing the scope of dis-
of preservation are not proportional to the have noted that the growth of ESI, and the manage preservation.6 For large organiza- covery, highlighted the importance of pro-
needs of the case.21
rise of e-discovery have been “most jarring tions, annual preservation costs, by conser- portionality in cases involving “‘asymmetric
For the producing party, identifying poten- to the system” of legal justice.2
vative estimate, exceed $40 million.7
information.’”11 Unless Congress acts to nullify
tial sources of ESI could result in the requesting While the cost is skyrocketing, evidence or modify the proposed amendments, which,
party seeking broad preservation despite the Continuous Explosion and Rising Costs
shows that most of the ESI subject to discov- as set forth below address key issues includ-
actual need for the information to resolve the ery is unlikely to be used in litigation: “On ing over-preservation and over-production
dispute on the merits.22 To address this con- Discovery in litigation is measured in average, only one-tenth of one percent (0.1 of ESI, they could go into effect in December
cern, courts have protected litigants by grant- gigabytes, terabytes, and now even in pet- percent) of pages produced in litigation are 2015. The current trend in jurisprudence also
ing protective orders where the producing abytes. A study quantifying discovery costs used as exhibits at trial.”8 Microsoft similarly emphasizes the need to limit discovery to
party voluntarily disclosed information about reported that more than half of the cases reported that for every 141,450 pages pro- what is necessary for the just, speedy and
preservation in the spirit of cooperation and examined involved at least 100 gigabytes of duced, only 142 are actually used.9
inexpensive resolution of disputes.
transparency, and the requesting party “vio- ESI.For perspective, 100 gigabytes of ESI is
3
lated the spirit of cooperation” by using that equivalent to 6.5 million pages of Word iles; Disputes Involving Asymmetrical Discovery
Seeking to Achieve Proportionality
information to request additional discovery.23
1 million pages of email; 16.5 million pages
Proportionality: Proposed Amendments of Excel iles; and 1.7 million pages of Power- In complex, high-stakes litigation where Preservation: Proposed Amendments to
to Rule 26(b)(1). “A principal conclusion of Point iles.4 The study shows that in almost there is a wide disparity in the volume of Rule 37(e). While the common law duty to
the Duke conference was that discovery in half of the cases “production costs,” which discovery each party controls—as in class preserve does not deviate signiicantly among
civil litigation would more often achieve the cover collection, processing and review, actions, securities, patent, antitrust litigation, jurisdictions, there is a wide variation in the
goal of Rule 1—the just, speedy, and inexpen- ranged from over $40,000 to $900,000 per
employment discrimination and product lia- standard for imposing sanctions for failure
sive determination of every action—through bility cases—the incentive for the requesting to comply. The Second Circuit, for example,
an increased emphasis on proportionality.”24 party to seek broad discovery is high because permits adverse inference instructions for
As part of a comprehensive revision to tailor GEORGE A. ZIMMERMAN is a partner and GIYOUNG imposing excessive costs upon the producing negligent or gross negligent loss of ESI while
discovery, the proposed amendments would SONG is discovery counsel at Skadden, Arps, Slate, party (without the requesting party incurring other circuits, like the Seventh Circuit, require
relocate the proportionality factors currently
Meagher & Flom.
comparable costs) can be suficient, by itself,
a showing of bad faith.12 This uncertainty in