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January 11, 2017

Proportionality at the Forefront of the Discovery Culture Change

One of the significant questions surrounding litigation in 2016 is whether the 2015 amendments to the Federal Rules of Civil Procedure (FRCP) are having a measurable impact on discovery practice. It is one thing to change the wording of the rules, it is another to change the culture in which discovery is practiced. However, as was recently discussed in an article published by Bloomberg BNA, many were optimistic that the rule amendments could effectuate genuine change in the entrenched discovery practices that have been detrimental to the litigation process.

One of the leading proponents in this regard is the Honorable John G. Roberts, Chief Justice of the United States. In his 2015 Year-End Report on the Federal Judiciary, Chief Justice Roberts emphasized the need for a change in discovery culture among counsel and the courts to ensure the reforms enacted by the amendments proved successful. Principal among those reforms is the need for “efficient access in discovery to information needed to prove either a claim or a defense.” A corollary objective, explained the Chief Justice, is the elimination of “wasteful or unnecessary discovery.”

The Role of Proportionality

While there are many steps that counsel and the courts can take to accomplish these goals in discovery, the Chief Justice spotlighted proportionality as one of the best tools for doing so. Enshrined in amended FRCP 26(b)(1), proportionality standards emphasize the need for a reasoned and collaborative approach to discovery advocacy. Proportionality has been called the lynchpin to successful discovery strategies and the key to efficient and effective litigation practices.

And yet, until recently, relatively few courts and even fewer lawyers were focused on the benefits that proportionality provides to clients in discovery. While that trend fortunately has changed, additional resources are still needed to help the bar and bench adopt proportionate discovery practices and thereby enable “efficient access” to information envisioned by the Chief Justice and the drafters of the amended rules.

The Sedona Conference WG1 Proportionality Commentary

To this end, The Sedona Conference Working Group 1 (WG1) on Electronic Document Retention & Production has just published for public comment a third iteration of its Commentary on Proportionality in Electronic Discovery (Commentary). Building on the original and updated commentaries on proportionality that Sedona published in 2010 and 2013, the Commentary delineates guidance on the reasonable application of the proportionality factors that should enable efficient and effective discovery practices. This is particularly important given “the significant and evolving emphasis on proportionality” under the 2015 amendments.

The direction from the Commentary also includes practical tips on the application of proportionality factors in the preservation context. In addition, it encourages the proportionate use of discovery tools to be wielded tactically as a scalpel and not as a sledgehammer. Finally, the Commentary delineates how reasonable metrics, dilatory tactics, nonmonetary resources, and technology can all affect the application of proportionality in a given case. These key points and other highlights from the Commentary will be covered in a webinar on January 10th on behalf of The Sedona Conference that features leading industry cognoscenti including U.S. Magistrate Judge James Francis.

The Commentary should prove to be an effective discovery resource. Indeed, The Sedona Conference encourages lawyers and judges to draw on the Commentary to litigate in the cooperative and proportionate fashion contemplated by the Chief Justice. We support this view and look forward to observing the impact that the Commentary has on discovery practices in the years to come.

Philip Favro
Philip Favro
Philip Favro acts as a trusted advisor to organizations and law firms on issues surrounding discovery and information governance. Phil provides guidance on data preservation practices, litigation holds, data collection strategies, and ESI search methodologies. In addition, he offers direction to organizations on records retention policies and the need to manage dynamic sources of information found on smartphones, cloud applications, and social networks. Phil is available to serve as a special master on issues related to electronic discovery. Phil is a nationally recognized thought leader and legal scholar on issues relating to the discovery process. His articles have been published in leading industry publications and academic journals and he is frequently in demand as a speaker for eDiscovery education programs. Phil is a member of the Utah and California bars. He actively contributes to Working Group 1 of The Sedona Conference where he leads drafting teams and serves as the Steering Committee project manager. Prior to joining Driven, Phil practiced law in Northern California where he advised a variety of clients regarding business disputes and complex discovery issues. He also served as a Judge Pro Tempore for the Santa Clara County Superior Court based in Santa Clara, California.