The purpose of discovery generally is to facilitate efficient and just dispute resolution. Balanced against that goal is concern for undue burden, delay and expense. Given these conflicting interests, courts generally do not require “perfect” efforts to preserve, collect and produce electronically stored information. Rather, the electronic data discovery process must only be “reasonable” under the circumstances.
Yet, absent express agreement of the parties, or specific court order, disputes about the adequacy of EDD efforts almost inevitably arise. Courts have not articulated objective benchmarks of reasonableness in EDD, and the very process of demonstrating (or challenging) the adequacy of EDD efforts itself imposes burden, delay and expense. On a big-picture basis, the concept of “proportionality” may mean not only the reasonableness of the e-discovery process, but also the reasonableness—under the circumstances—of efforts to demonstrate the adequacy of the process. The inclusion of tests of cooperation may make review of EDD efforts easier for courts to conduct.
The Federal Rules of Civil Procedure, and equivalent state court rules, generally incorporate the concept of proportionality in discovery. In broad terms, the interests of the parties (and the justice system) in a fair search for truth must be balanced against the amount at issue in the case, the resources of the parties, the number and complexity of the dispositive issues in the proceeding, the time available to conduct an investigation and other factors.
Evaluation of the adequacy of EDD requires more than a purely mathematical count of the amount of materials produced, versus the costs of the process. Some sense of priority of materials (especially materials that may help the parties resolve their dispute more promptly) must be imposed. Priority, however, is very much in the eye of the beholder. And efforts at estimating costs of discovery are notoriously difficult, especially in the early stages of litigation.
Given these challenges in formulating an EDD proportionality calculus, courts have increasingly focused on the fairness of the process—versus simple metrics—as a means to impose some judicial restraint on EDD excesses. The traditional “go fish” approach to discovery requests and responses, in particular, appears ill-suited to creation of an efficient discovery process.
Courts, often citing the Sedona Conference Cooperation Proclamation, have called for increased transparency and collaboration in e-discovery. A particular point of contention involves sharing of search terms; some practitioners insist that all such information is protected as work product. Collaboration in the formulation of such terms, however, can greatly improve the efficiency of the process.
The problems of proportionality and cooperation become ever-more complicated, as computer technology advances. The era of “big data” has ushered in new challenges, and new opportunities, for lawyers and vendors involved in EDD. In many cases, the volume of material defies human-only review. EDD requires up-front planning to determine the appropriate scope of data custodians, time frames and search terms. Absent agreement between the parties, wasteful “do over” efforts may ensue. Use of systems such as predictive coding, moreover, which requires both an initial framework for the search and review process and a verifiable quality control scheme, invites parties to share knowledge of the best means of structuring the process.
Given these developments, it is not surprising that the most recently proposed amendments to the Federal Rules of Civil Procedure have focused particularly on issues of proportionality and cooperation. At a minimum, these revisions will help raise awareness in the area, both at bench and bar. Improved (and continuing) systems of study and education also appear essential, as changes in technology, business practices, rules and procedures in EDD require constant efforts to maintain competence. Recent American Bar Association modifications to the Model Rules of Professional Responsibility, focused on the need for lawyers to maintain technical, as well as legal, competence, confirm the point.
Ultimately, however, the e-discovery system demands new professional attitudes. The rules (at the federal and state levels) assume “good faith” efforts to confer on discovery issues; to formulate discovery plans at the outset of a case; and to resolve (where possible) discovery disputes that may arise during the course of a case.
The point is that the case belongs to the parties and their counsel, not the judge. The parties are in the best position to manage the discovery process in accordance with their needs and capabilities. Refusal to cooperate, and careless dumping of issues in a judge’s lap, is virtually guaranteed to receive judicial opprobrium. Where judges spot such attitudes, they may choose to appoint special masters, mediators, referees or other experienced neutrals, who can help the parties focus on cooperative means to proceed through the challenges of e-discovery. Even where not wholly successful, efforts to agree on fundamental points, and to narrow controversial issues requiring judicial attention, best serve the justice system and the parties.
Steven Bennett is a partner at Park Jensen Bennett, based in New York City.