Migrated from eDJGroupInc.com. Author: Barry Murphy. Published: 2010-10-08 09:00:49Format, images and links may no longer function correctly. 
The Sedona Conference released its Commentary on Proportionality in Electronic Discovery, available for download here. Proportionality is an interesting topic; determining what is good faith and reasonable is challenging. The Sedona Conference Working Group provides some very good analysis in this document. I’d like to add some perspective on what this means for organizations working on eDiscovery programs.
Sedona Conference Principle of Proportionality #1 – The burdens and costs of preservation of potentially relevant information should be weighed against the potential value and uniqueness of the information when determining the appropriate scope of preservation.
The commentary makes some good points here, stating that the “courts may invoke their inherent authority to sanction parties for pre-litigation preservation failures,” and that “parties who demonstrate that they acted thoughtfully, reasonably, and in good faith in preserving or attempting to preserve information prior to litigation should generally be entitled to a presumption of adequate preservation.”
eDJ perspective: not being a lawyer, I can’t make the call on what each organization should do in terms of determining proportionality, but my interpretation of this principle is that thoughtful eDiscovery programs that include deployment of the right processes and tools to enforce those policies will go a long way to reducing risk and winning favor with courts.
Given the availability of a multitude of preservation tools, it seems to me that not addressing at least the main content sources (such as email) would constitute a preservation failure. More on this later.
Sedona Conference Principle of Proportionality #2 – Discovery should generally be obtained from the most convenient, least burdensome, and least expensive sources.
The commentary advises weighing many “factors when determining which source is optimal.”
eDJ perspective: determining the optimal source of information for discovery is going to be a challenge, no question. But, what this means to me is that every organization should be undertaking a data mapping initiative. If you don’t know where your information is and the accessibility of the source it lives in, you will have no way to gauge the optimal source. Again, this would seem like a default preservation failure. We pointed out in a previous post that many of the top law firms now have dedicated eDiscovery practice groups (thanks Cowen Group for the research); corporations should be creating these groups, too…and one of the first activities should be the data mapping exercise.
Sedona Conference Principle of Proportionality #3 – Undue burden, expense, or delay resulting from a party’s action or inaction should be weighed against that party.
The commentary points out that the “proportionality principle also applies to a party’s failure to engage in early, meaningful discussion with an opponent to develop a discovery plan and avoid potential disputes.”
eDJ perspective: the ability to engage in early, meaningful discussions presumes that an organization knows all its sources of data and their accessibility. In a better case scenario, an organization has insight into that data, through ECA tools, for example.
Sedona Conference Principle of Proportionality #4 – Extrinsic information and sampling may assist in the analysis of whether requested discovery is sufficiently important to warrant the potential burden or expense of its production.
eDJ perspective: when there are sources of information where it’s impossible to tell if important or potentially responsive information might live there, sampling is certainly a good way to go. Tools such at Index Engines, however, have changed the game in the backup tape arena. Instead of having to restore full tapes, it’s possible to only pull the potentially responsive information. That changes the economic analysis, especially since this has caused the price of tape restoration to plummet. The burden is on organizations to constantly be aware of what’s available for solutions and what the costs of those solutions are.
Sedona Conference Principle of Proportionality #5 – Non-monetary factors should be considered when evaluating the burdens and benefits of discovery.
eDJ perspective: to me, this principle tells organizations that it’s not possible to simply rely on economics an excuse for not managing information more proactively. There are certain cases that might have enough social value that the courts will order discovery no matter what. Not that an economic analysis shouldn’t be done, but too many organizations try to hide behind what they perceive as high costs of solutions when the reality is that the solutions make sense because they are the right thing to do.
Sedona Conference Principle of Proportionality #6 – Technologies to reduce cost and burden should be considered in the proportionality analysis.
The commentary points out that “parties and/or their counsel should have a general understanding of the technology available to reduce the cost and burden of electronic discovery in accordance with the proportionality doctrine.”
eDJ perspective: this one can’t be more clear in placing responsibility directly with organizations to know what’s available for technology solutions. However, I’d take this even further. It’s not just about the economics of retrieving information; organizations should also look at the ancillary benefits of technology. For example, why not deploy a collaborative document management system that has retention and preservation capabilities even though it may cost several hundred thousand dollars? Not only will it make information more accessible than either backup tape or network file shares, but it can also make employees more productive in how they collaborate and find information.
In summary, the Sedona Conference did a great job providing an analysis of the principles of proportionality. At eDJ, we hope that organizations will begin to use that analysis as a way to kick-start eDiscovery programs and the deployment of solutions.