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E-Discovery | MONDAY, OCTOBER 5, 2015 | S7

was “the need for cost effectiveness and on the six factors for determining propor-

proportionality[.]”15
The application of proportionality to define the scope of discovery tionality included in the language of the pro-
Following Da Silva Moore, even without posed Rule, granting in part and denying
the codification of proportionality, courts preservation, review, and production amplified with the rapid, expo- in part the discovery sought in light of the
have looked to technology to help rein in nential increase of electronic discovery.
proposed new standard.22 The court noted
discovery costs, invoking the proportional- that “[a] party may no longer obtain infor-
ity standard. For example, with over two mil- mation [only] because it is relevant to the
lion documents requiring a responsiveness subject matter involved in the action”—the the use of analytics and technology assisted Rule 26 standard are also discoverable
review, plaintiffs in Bridgestone Americas v. information must be relevant and it must be review tools.
under the newly narrowed standard of
Int’l Business Machines, sought permission proportional.Some cour ts have begun applying the the proposed amendments. Specifically,
23
from the court—over the defendant’s objec- proposed amendments.
production of this finite group of emails
tion—to employ predictive coding software Conclusion
With the proposed amendments almost will pose minimal burden or expense
on a review set, which already was culled certain to take effect in December, some and is proportional to the needs of the
based on search terms.16 In support of its The codification of proportionality to courts have featured the proportionality case in light of the documents’ potential
approval of the request, the court relied on define the scope of discovery in the Federal standard more prominently in their discov- to illuminate facts central to the merits
the “exhortation” of Rule 26 that discovery Rules may give greater teeth to the admonish- ery decisions.20 Southern District of New York of the case, the location of possible wit-
“be as efficient and cost-effective as pos- ment in Rule 1 that civil actions in the federal Chief Judge Loretta Preska recently decided nesses, and issues concerning witness
sible.”17 Similarly, in FDIC v. Bowden, the courts should be “construed, administered, a discovery dispute in a fraud action, Cohen credibility.21
v. Cohen
court urged the parties to consider using and employed by the court and the parties , ordering plaintiff to produce with- It is noteworthy that the documents under
predictive coding after they failed to agree to secure the just, speedy, and inexpensive held documents using both the current dispute in Cohen had already been identified
on a joint protocol for the review and pro- determination of every action and proceed- Rule 26(b)(1) standard and the proposed and withheld by plaintiff on the grounds of
duction of electronically stored information ing.”24 Moreover, it is likely to strengthen standard of proportionality:
their alleged irrelevance. The order for their
and already had spent $615,000 to digitally arguments for the use of technology to aid in production turned on an in camera analysis
scan 153 million pages.18 And earlier this review to satisfy the proportionality standard The Supreme Court recently submit- of their relevance and not on the burden or
year, Peck revisited Da Silva Moore in his for scope. At a minimum, there is optimism ted for congressional review proposed cost of their collection, review, or produc-
decision in Rio Tinto v. Vale, in which—with- from the bench and litigants, as noted above, amendments to the [Rules]. If adopted, tion—making this case less than perfect
out consideration of burden or proportion- that a change of focus to proportionality will these amendments would revise the for comparing outcomes under the old and

ality—he endorsed the parties’ technology help to rein in the modern-day burdens of Rule 26(b)(1) civil discovery standard proposed Rule 26(b)(1) and how they might
assisted review (TAR) protocol, writing: satisfying discovery obligations in the face ... . Although these revisions remain differ. However, Preska’s careful weighing of
“It is now black letter law that where the of mounting data and proliferating electronic subject to congressional review and the burden and expense of production against
producing party wants to utilize TAR for communication.
will not take effect until December the needs of the case under the amended
document review, courts will permit it.”19 1, 2015, the Court has taken this pro- language is likely to be modeled in cases to
The codification of the proportionality stan- •••••••••••••••••••••••••••••
posed revision into account and has come.
dard into Rule 26(b)(1) should only further 1. Apple v. Samsung Elecs., 2013 WL 4426512, at *3 concluded that all documents found In another recent case, Turner v. The Paul
judicial support for and encouragement of
(N.D. Cal. Aug. 14, 2013) (Grewal, J.) » discoverable today under the present
Revere Life Ins. Co., the court explicitly relied
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