Proportionality in E-Discovery: Emerging Strategies Leveraging Proportionality Tools to Reduce E-Discovery Abuses and Expenses Today’s faculty features: 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10. THURSDAY, JUNE 28, 2012 Presenting a live 90-minute webinar with interactive Q&A Conor R. Crowley, Partner, Crowley Law Office, McLean, Va. Gina M. Trimarco, Atty, DLA Piper, Florham Park, N.J. Christopher Q. King, Partner, SNR Denton, Chicago
Transcript
Proportionality in E-Discovery:
Emerging Strategies Leveraging Proportionality Tools to Reduce E-Discovery Abuses and Expenses
With decades of practical experience in litigation and corporate best practices, we are uniquely equipped to provide solutions to the challenges posed by complex litigation and information management. We listen carefully to our clients’ concerns, issues and needs before crafting cost-effective, strategic solutions to ediscovery and information management challenges in addition to a full range of best-practices compliant legal processes in all areas of law. Our clients include Fortune 100 corporations, AmLaw 20 law firms and government agencies.
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Mr. Crowley is the Vice Chair of The Sedona Conference Working Group on Best Practices for Electronic Document Retention and Production, and a member of the International Association of Privacy Professionals, the Advisory Board for Georgetown University Law Center’s Advanced E-Discovery Institute and the Board of Advisors for BNA’s Digital Discovery & e-Evidence.
He is the Editor-in-Chief of The Sedona Conference Commentary on Proportionality in Electronic Discovery, and a Senior Editor of a number of The Sedona Conference’s publications including The Sedona Conference Commentary on Legal Holds and The Sedona Principles (Second Edition): Best Practices Recommendations & Principles for Addressing Electronic Document Production.
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Conor R. Crowley, Esq., CIPP/US/E
• Federal Rules of Civil Procedure
• Case law addressing proportionality
• The Sedona Conference Commentary on Proportionality in Electronic Discovery
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Topics
• Rule 26(b)(2)(C)(i) allows courts to impose limitations where “the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive.”
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FRCP Rule 26(b)(2)(C)(i)
• Rule 26(b)(2)(B) provides that “[a] party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.”
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FRCP Rule 26(b)(2)(C)(i)
• Rule 26(b)(2)(C)(ii) provides that courts may limit discovery where “the party seeking discovery has had ample opportunity to obtain the information by discovery in the action.”
• Akin to applying the concepts of waiver and laches
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FRCP Rule 26(b)(2)(C)(ii)
• Rule 26(b)(2)(C)(iii) provides that, in assessing whether to limit discovery, courts may consider whether “the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.”
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FRCP Rule 26(b)(2)(C)(iii)
• Disability Rights Council of Greater Washington v. Washington Metropolitan Transit Authority, 242 F.R.D. 139, 148 (D.D.C. 2007)
• Plaintiffs were physically challenged citizens suing for access to public transportation
• The court denied the defendant’s request to limit discovery of back-up tapes, given “the importance of the issue at stake and the parties’ resources.”
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Case Law
• Kay Beer Distrib., Inc. v. Energy Brands, Inc., 2009 WL 1649592 (E.D. Wis. 2009)“
• “Defendant] has no obligation to turn over to an opposing party in a lawsuit non-discoverable and privileged information. . . . The mere possibility of locating some needle in the haystack of ESI . . . does not warrant the expense [defendant] would incur in reviewing it.”
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Case Law
• Pippins, et al. v. KPMG LLP, 2011 U.S. Dist. LEXIS 116427 (SDNY 2011) (“Pippins I”)
• FLSA suit where discovery was stayed pending conditional class certification of opt-in class
• KPMG sought protective order limiting preservation obligation to random sample of 100 hard drives
• Court denied motion for protective order and required KPMG to preserve the contents of former and departing potential class members at a cost of approximately $1.5 million
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Case Law
• Pippins, et al. v. KPMG LLP, 279 F.R.D. 245 (SDNY 2012) (“Pippins II”)
• Court upheld denial of motion:
– KPMG unreasonably refused to cooperate by not acceding to plaintiffs’ request to produce a sample of hard drives to determine relevance, citing discovery stay
– KPMG could not rely on proportionality argument given that the failure to produce a sample of hard drive’s withheld information that was essential to demonstrate the benefit of preservation
– KPMG should “’reasonably anticipate’ that every Audit Associate who will be receiving an opt-in notice is a potential plaintiff”
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Case Law
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The Sedona Conference® www.thesedonaconference.org
The Sedona Conference® is a nonprofit, 501(c)(3) research and educational institute dedicated to the advanced study of law and policy in the areas of antitrust law, complex litigation, and intellectual property rights. Through a combination of Conferences, Working Groups, and the "magic" of dialogue, The Sedona Conference® seeks to move the law forward in a reasoned and just way.
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The Sedona Conference Commentary on Proportionality in Electronic
Discovery
• 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.
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Principle 1
• Discovery should generally be obtained from the most convenient, least burdensome, and least expensive sources.
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Principle 2
• Undue burden, expense, or delay resulting from a party’s action or inaction should be weighed against that party.
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Principle 3
• 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.
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Principle 4
• Nonmonetary factors should be considered when evaluating the burdens and benefits of discovery.
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Principle 5
• Technologies to reduce cost and burden should be considered in the proportionality analysis.
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Principle 6
Thank You
Conor R. Crowley, Esq., CIPP/US/E
Crowley Law Office 6526 El Nido Drive McLean, VA 22101 Ph: 703.659.5030 Fax: 703.563.6090
Christopher King is a general litigator who regularly advises clients regarding electronic discovery and information governance. He concentrates in the areas of securities litigation and arbitration, consumer fraud, ERISA, antitrust and other class actions, and director and officer fiduciary and shareholder litigation.
Christopher was listed in the 2012 Chambers USA: America’s Leading Lawyers for Business, Litigation: E-Discovery, National.
SNR Denton's affiliates. This publication is not designed to provide legal or other advice and you should not take, or refrain from taking, action based on its content. Attorney Advertising. Please see snrdenton.com for Legal Notices.
