Page 6 - E-Discovery

S6 | MONDAY, OCTOBER 5, 2015 | E-Discovery
| NYLJ.COM

Proportionality:

exponential increase of electronic discovery.
BY SAMANTHA V. ETTARI
A recent decision from the District of New
A Jersey recognized the need for the Rules to
mendments to the Federal Rules of Civil The (Not So) New Kid “confront the problem of over-discovery and
Procedure (the Rules) are expected to to allow the court to proportion discovery,
go into effect on Dec. 1, 2015. One of the
even though it may be relevant,” and that this
most anticipated changes for civil litigators is need had only “intensified” with the “emer-
the codification of the “proportionality” stan- gence of e-discovery.”7
dard (in which cost and burden are weighed On the Block
In 2012, Southern District of New York

against the importance and value of the case, Magistrate Judge James C. Francis IV closely
among other factors) in the amendments to considered proportionality in determining
Rule 26(b)(1), which governs the scope of whether data, alleged to be “not reasonably
discovery. Proportionality—described only accessible,” should be produced.8 Francis
two years ago by one federal judge as “an all- noted that “the concept of proportionality
too-often ignored discovery principle”—will [was] embodied” in the Rules and quoted
soon be one of the primary considerations the Sedona Conference, a leading think
in defining the scope of discovery.1
tank in e-discovery and data privacy: “The

But the standard is not entirely novel. ‘metrics’ set forth in [Rule 26(b)] provide
Over the last decade, federal trial courts— courts significant flexibility and discretion
including those in the Second Circuit—have to assess the circumstances of the case
invoked the principle of proportionality and limit discovery accordingly to ensure
to limit the scope of discovery, often in that the scope and duration of discovery
response to arguments of cost- and time- is reasonably proportional to the value of
burden. Those decisions provide guidance the requested information, the needs of the
for the near-future application of the revised case, and the parties’ resources.”9 Francis
rule and may also suggest greater accep- cautioned that in certain types of cases,

tance of a litigant’s use of technology, such proportionality could not be measured
as predictive coding or related analytics, to in dollars alone, writing: “many cases in
effect proportionality between a litigation’s public policy spheres, such as employment
value and its costs by streamlining and con- practices, free speech, and other matters,
trolling the costs of electronic discovery. may have importance far beyond the mon-
And, although the amendments are not etary amounts involved.”10 “[T]aking into
slated to take effect until December, some account both monetary and non-monetary
courts have already moved away from the components[,]” Francis ordered the produc-
existing “reasonably calculated” standard tion of data from a number of challenged

to apply the “proportionality” standard— databases as proportionate to the value of
demonstrating how the amendment may the case.11 Other jurists in the Second Cir-
impact discovery going forward.
cuit trial courts have also invoked the pro-
The scope of discovery is changing from portionality test to limit against discovery
“reasonably calculated to lead to the dis- excesses and in reaction to the proliferation
covery of admissible evidence” to “propor- of electronically stored information.12 And,
tional to the needs of the case.”
the Second Circuit has expressly endorsed
When the December 2015 Amendments the trial courts’ “broad discretion to limit

to the Rules go into effect, Rule 26(b)(1) will discovery in a prudential and proportion-
read:
ate way.”13
Parties may obtain discovery regarding But where proportionality was previously
any non-privileged matter that is relevant used to cabin and curtail discovery, its scope
to any party’s claim or defense and pro- already had been defined; with the impending
portional to the needs of the case, con- Rule change, proportionality considerations
sidering the importance of the issues at now will factor in from the outset and help
stake in the action, the amount in contro- shape the scope of discovery itself.
Proportionality may justify the use of
versy, the parties’ relative access to rel-
evant information, the parties resources, technology to curb discovery costs and
the importance of the discovery in resolv- expedite review.
ing the issues, and whether the burden Proportionality considerations aim to bring
or expense of the proposed discovery sometimes exorbitant discovery costs in line
outweighs its likely benefit. Information with the true value of a dispute. One way
within this scope of discovery need not to minimize or rein in such costs has been K
be admissible in evidence to be discov- through the use of technology—whether TOC
through basic search terms, limiting custo- IGS
erable.2
dians, or culling review sets based on meta- B

The proposed amendment includes direct data, such as date range. These techniques
guidance on the factors relevant to a propor- have gained approval from the courts and
tionality review. Notably absent is the current increased acceptance from litigants.
But while proportionality may be the consideration of a “proportionality test” to
standard—often relied upon by litigants to Southern District of New York Magistrate new codified standard for defining scope impose discovery limitations in light of the
justify expansive discovery requests—that Judge Andrew Peck issued a seminal rul- under Rule 26(b)(1), it is not a new concept emerging electronic discovery landscape
allowed for the discovery of “[r]elevant infor- ing in Da Silva Moore v. Publicis Groupe in when considering limitations to the scope was evident in ground-breaking decisions
mation”—even if it would not be “admissible 2012, providing judicial approval for the use of discovery. Proportionality considerations of the early 2000s, including Zubulake v.
at the trial” so long as it appeared “reason- of predictive coding, an analytic tool that were added to the Rules in 1983 in the form UBS Warburg.5 Moreover, some courts have

ably calculated to lead to the discovery of can be trained with “seed sets” or already of the burden and expense limitations and read a proportionality requirement into Rule
admissible evidence.”3
identified relevant documents to organize a balancing test codified in Rule 26(b)(2).4 26(g), which governs the issuance of dis-
additional documents for review in order As a result, courts commonly considered covery demands and responses.6
of responsiveness.14 Among the consider- proportionality when deciding whether The application of proportionality to define
SAMANTHA V. ETTARI is e-discovery counsel at Kramer ations weighed by the court in determin- requested discovery was unduly burden- the scope of discovery preservation, review,
Levin Naftalis & Frankel.
ing that predictive coding was appropriate
some pursuant to Rule 26(b)(2). Judicial
and production amplified with the rapid,