Page 9 - E-Discovery

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E-Discovery | MONDAY, OCTOBER 6, 2014 | S9

listed in Rule 26(b)(2)(C)(iii) to Rule 26(b)(1). custodians by merely examining organiza-
The Duke Subcommittee explained: “The pur- A study quantifying discovery costs reported that more than half
tional charts and using metadata to identify
pose of moving these factors explicitly into of the cases examined involved at least 100 gigabytes of ESI. For individuals who were communicating with
Rule 26(b)(1) is to make them more promi- existing custodians.36 Courts have explained
nent, encouraging parties and courts alike to perspective, 100 gigabytes of ESI is equivalent to 6.5 million pages of that “just because a proposed custodian
remember them and take them into account exchanged a large number of emails with a
in pursuing discovery and deciding discovery Word iles; 1 million pages of email; 16.5 million pages of Excel iles; current custodian does not mean that the
disputes. . [I]t is time to prompt wide-spread and 1.7 million pages of PowerPoint iles.
proposed custodians will have a signiicant

respect and implementation.”25
number of important, non-cumulative infor-
The current Rule 26(b)(1) allows parties mation.”37
to “obtain discovery regarding any nonprivi- Cases in the Commercial Division have tionality, courts have approved limited dis- Rule 502(d) [of the Federal Rules of Evi-
leged matter that is relevant to any party’s declined to order cumulative discovery even covery, including the use of keywords to dence] allows what I call the insurance
claim or defense,” and “[f]or good cause, the where the sought after information can be identify and review a percentage of poten- policy or get-out-of-jail-free card. . If you
court may order discovery of any matter rel- relevant. In MBIA v. Credit Suisse Securities, tially relevant files,30 and use of sampling are a good lawyer, you are not going to
evant to the subject matter involved in the the requesting party moved to compel, con- “[i]f feasible and cost efficient” to assess be saying, “I have a 502(d) order so I do
action” even if the material may be inadmis- tending that it “lack[ed] the full universe of the relevance of archived ESI.31 Courts also not have to review [and I can] let the
sible at trial so long as the “discovery appears responsive ESI documents that it need[ed] to consider extrinsic evidence, including the most important privileged document
reasonably calculated to lead to the discovery prove its case” and the requested information parties’ opinions regarding the importance out and then claw it back later.” . [T]he
of admissible evidence.”26 An amended rule “demonstrate[d] some of the most egregious of the requested information, whether the other side is going to know about it if
would limit this scope to discovery that is examples of the fraud . allege[d].”38 The information was created by “‘key players,’” you produce it and you cannot prevent
relevant, “and proportional to the needs of court denied the motion, inding that based whether the prior discovery indicates that them from using that information to the
the case, considering . the amount in contro- on ESI produced to date, “‘the parties have the information is important, whether the extent they can.
34
versy . and whether the burden or expense received all of the documents necessary, and information was created contemporaneously Peck instead suggests that streamlined or
of the proposed discovery outweighs its likely more, to litigate the merits of their claims with the key facts in the case, and whether limited review may be appropriate if certain
beneit.”27 Notably, the proposed amendment and defenses at trial and to ensure that any the information is unique.32
categories of information are unlikely to be
deletes the phrases “discovery of any matter jury verdict is based on a reliable factual At least one court has found clawback privileged.
relevant to the subject matter” and “discovery record.’”39 While noting that the information orders to be relevant in assessing burden: The current Rule 26(b)(2)(C)(i) directs
[that] appears reasonably calculated to lead sought consisted of evidence unfavorable to “A clawback order can protect [the producing courts to impose limitations where “the dis-
to the discovery of admissible evidence.”28
the producing party, the court reasoned that party] against a claim of waiver, such that [the covery sought is unreasonably cumulative or
Proportionality: Case Law. The Sedona “[n]onetheless, [the requesting party] (or any producing party] need no longer bear the cost duplicative,”35 and the proposed amendment
Conference explains that sampling and extrin- other plaintiff in complex litigation) cannot of reviewing the ESI for responsiveness and to Rule 26(b)(1) underscores this limitation.
sic information can help determine whether reasonably expect to uncover every single privilege.”33 However, as explained by Judge Courts have limited discovery, for instance,
requested discovery warrants the potential instance” of relevant evidence.40
Andrew J. Peck of the Southern District of New when the requesting party failed to “point to
burden or expense of its production.29 When Proportionality: Local Rules and Guide- York, a clawback order does not necessarily any speciic, noncumulative evidence they
evidence is required in considering propor-
lines Governing Proportional- » eliminate the need for document review:
expect to find” and instead selected new
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