In 2015, amendments made to Federal Rule of Civil Procedure 26 affected issues of establishing proportionality during discovery. These changes were made largely to counteract the increasing incidence of e-discovery fishing expeditions and their burden on discovery procedures. The rule states, “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Proportionality is a major consideration during the course of discovery, as the court guards against overly expensive and/or burdensome productions in relation to what is at stake in the case. In this article, I will refer specifically to e-discovery and digital forensic productions.
In keeping with the spirit of protecting against expansive fishing expeditions, any opposing party must provide evidence to demonstrate why an e-discovery or digital forensic investigation would be disproportionate due to its cost. If an estimate for work is provided to the court, an explanation of cost should be provided—particularly if the cost is steep. Unfortunately, I’ve encountered an increasing number of experts who deliberately inflate would-be costs to support a party’s claims of undue burden. Many litigants are treating Rule 26 as an excuse to object to any and every discovery request. It has become a useful tool to manipulate the course of discovery; furthermore, when “tech talk” is involved, it can often be difficult to argue with an e-discovery vendor and get the facts.
In a recent case on which I was consulted, opposing counsel objected to restoring a backup tape that was relevant to the major claims being argued. Their objection centered on the purported expense of the restoration; their e-discovery vendor supported their proportionality argument with the claim that restoration of this single tape would cost $35 million! While I don’t know whether this vendor ended up providing evidence for this estimate, I think it is safe to say that a project of this type would not come with such a hefty price tag.
To keep working relationships with clients, e-discovery vendors will often agree to provide inflated estimates and confusing explanations to the court. Improper collection and preservation techniques can also contribute to the cost, making the duty to preserve electronic evidence all the more critical. The Sedona Conference Commentary on Proportionality in Electronic Discovery states, “In assessing whether a particular discovery request or requirement is unduly burdensome or expensive, a court should consider the extent to which the claimed burden and expense grow out of the responding party’s own action or inaction.” Basically, the ease of conducting an e-discovery investigation often depends on the data storage practices of the client, who is therefore responsible for ensuring that their proportionality argument isn’t based on their own mishandling of relevant evidence.
To help avoid the confusion and BS that can surround arguments about proportionality and e-discovery, the judicial authority to appoint special masters can be the most important factor in obtaining accurate, unbiased information. In my experience, this action can be the catalyst for parties coming to terms with discovery protocols, as it tends to disable the powerful and frequently mystifying “tech talk” of hired guns.
MARK LANTERMAN is CTO of Computer Forensic Services. A former member of the U.S. Secret Service Electronic Crimes Taskforce, Mark has 28 years of security/forensic experience and has testified in over 2,000 matters. He is a member of the MN Lawyers Professional Responsibility Board.