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November 2021


Go fish? Proportionality revisited

By Mark Lanterman

A couple of years ago, I wrote in this space about issues of proportionality in cases involving electronically stored information (“Proportionality and Digital Evidence,” Bench & Bar Dec. 2019). As stated in Federal Rule of Civil Procedure 26, “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.”1 This rule seeks to balance the costs and burdens of discovery with the benefits, but it goes on to say, “A party’s identification of sources of electronically stored information as not reasonably accessible does not relieve the party of its common-law or statutory duties to preserve evidence…. The volume of—and the ability to search—much electronically stored information means that in many cases the responding party will be able to produce information from reasonably accessible sources that will fully satisfy the parties’ discovery needs.” 

Given the complexity of digital evidence and the risk of its corruption, it is important to establish fair and workable discovery protocols from the outset. It’s also critical that best practices in digital forensics and e-discovery be followed to ensure that relevant sources of electronically stored information (ESI) are properly collected and preserved. Unfortunately I have seen many instances in which digital forensic or e-discovery experts give misleading or inaccurate estimates to the court on behalf of their clients to skew the cost or burden that would ensue. In the event of a reasonable discovery request, verification may be necessary to accurately establish the accessibility of ESI.

While these rules may assist in preventing parties from initiating costly, burdensome, and time-consuming fishing expeditions, estimates for digital forensic investigations may be inaccurately presented to the court to further individual party interests. In Wolford v. Bayer Corporation, a cost estimate of $38-$46 million, and a time estimate of two years, was provided to the court by Bayer’s expert to review 10 TB of data. In spite of this massive estimate, the expert ultimately testified that it wasn’t based on any known metrics or publications! Rather, the expert insisted, “data is data” and it doesn’t matter what kind of data is in question. The court ultimately disagreed, finding that the type of data does matter, that technology-assisted review (TAR) would reduce Bayer’s burden, and that the estimate provided was hypothetical and not based on fact.2 This order demonstrates an all-too-frequent occurrence—mounting specious cost and burden objections as a means to keep relevant ESI out of court. Simple objections need to be substantiated and adequately explained by the opposing party. In this instance, a reasonable search protocol including TAR was an appropriate way to access and review the data. 

Though there is a risk of unfairly inflating the costs and burdens of digital forensic or e-discovery investigations, the sheer amount of digital information available in the majority of cases nonetheless requires keeping discovery requests from becoming too broad. In Toranto v. Jaffurs,3 the court concluded that a tailored discovery request was required after the plaintiff requested documents related to the defendant’s organization that were not proportional to the needs of the case.4 Inordinate discovery requests can be especially burdensome when they involve ESI, given the potential number of sources and amount of material to review. In addition to providing an accurate assessment of cost and burden to the court, crafting a balanced discovery protocol is essential for both parties. Furthermore, cost-reducing strategies and measures (such as TAR) should be considered before a final estimate is provided. 

As I mentioned in my first article on proportionality, the judicial authority to appoint special masters may be the best route to obtain an unbiased assessment when dealing with the confusion that often surrounds electronically stored information. Verifying the information proffered by experts helps assure that proportionality issues are effectively addressed. Between unlimited fishing expeditions and the denial of reasonable discovery requests owing to inaccurate cost or burden estimates, there lies a happy medium. Consulting with uninvolved third-party experts can be helpful in determining the facts and developing a sound protocol that suits everyone. 


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.  

Notes

1 https://www.law.cornell.edu/rules/frcp/rule_26 

2 Order, Wolford v. Bayer Corporation, et al., No. 16-CI-00907 (Pike Cnty. Cir. Ct. 8/26/2020).

3 Toranto v. Jaffurs, No. 16CV1709-JAH (NLS) (S.D. Cal. 9/13/2019).

4 https://www.americanbar.org/groups/litigation/committees/pretrial-practice-discovery/practice/2019/proportionality-has-some-bite/ 

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