502d Drawbacks
Addressing Possible Pitfalls from Rule 502(d) Non-Waiver Orders
March 19, 2019
Preserving Text Messages
Practical Tips for Lawyers on How to Preserve Relevant Text Messages
April 29, 2019

Reducing ESI Preservation Obligations with Proportionality and Metrics

Reducing ESI Preservation Obligations with Proportionality and Metrics

Proportionality is an important doctrine that is increasingly being used to reduce the burdens of preserving relevant electronically stored information (ESI). Widely accepted as a measure for balancing the benefits and burdens of production, some courts have applied proportionality standards to relieve parties from preserving certain categories of ESI. Drawing on the advisory committee note language from the 2015 amendment to Federal Rule of Civil Procedure 37(e), which emphasized its role in the preservation analysis, courts have held that the burdens of keeping certain ESI outweigh the benefits of its preservation.

If a preserving party wishes to invoke proportionality to decrease its ESI preservation obligations, it must develop actionable information (i.e., metrics) to help quantify the preservation burden at issue. Detailed metrics should reflect the resources a party will invest to preserve the requested information. Those metrics could include the feasibility of different methods for preserving the requested information, the respective preservation costs of those methods, and the corresponding impact of preservation on a party’s information systems, worker productivity, and other business operations. In contrast, conclusory or self-serving statements fall short of the fulsome metrics courts require to satisfy proportionality standards.

None of this should come as a surprise. Details regarding time, manpower, and costs are analogous to the types of information responding parties must develop to show the disproportionality of a production demand. And just like production, preservation metrics must then be disclosed to adversaries and the court in order to substantiate the disproportionality of a preservation burden.

The Al Otro Lado, Inc. v. Nielson Case

These factors were on display in a recent case that considered whether the U.S. government must preserve relevant surveillance video of asylum seekers. In Al Otro Lado, Inc. v. Nielsen, plaintiffs claimed they were wrongfully denied asylum due to certain policies and processes of the U.S. Department of Homeland Security (DHS).[1] To substantiate their claims, plaintiffs sought surveillance video from the U.S. Customs and Border Patrol (CBP) that would allegedly reflect those plaintiffs seeking asylum at U.S. Ports of Entry along the country’s border with Mexico.

DHS agreed to provide some of the requested video footage, but objected to other requested categories that plaintiff sought as being unduly burdensome. In an effort to alleviate its preservation burdens, DHS moved for a protective order, seeking court approval to affirmatively destroy potentially relevant video. DHS essentially argued that the burdens of preservation outweighed any benefits plaintiffs might obtain from the information.

In addressing the issues, the court found that as an initial matter, much of the requested surveillance video was at the heart of plaintiffs’ claims. Given the “highly relevant” nature of the video, the court reasoned that it would evaluate “the ability and effort” required of DHS to keep the footage. Doing so would allow the court to determine whether such discovery was in fact “proportional to the needs of the case.” To make this determination, the court looked to the metrics DHS disclosed regarding its preservation burdens. The quality and nature of that information was ultimately found to be lacking.

For example, DHS did not provide metrics regarding its projected costs for retaining different categories of surveillance video. Nor did DHS quantify with specificity the costs it had already incurred to preserve relevant video footage. Instead, DHS offered self-serving statements such as “the only feasible way to satisfy plaintiff’s preservation requests is to preserve all surveillance ESI.” Such a conclusory assertion was no substitute for the fulsome details the court needed to evaluate DHS’s assertions of undue burden. As a result, the court generally rejected the agency’s motion for protective order and required DHS to preserve the relevant video that plaintiffs requested.[2]

Proportionality and Metrics

Parties seeking to curtail ESI preservation burdens need not be discouraged by the Al Otro Lado holding. Al Otro Lado teaches that parties must provide metrics to demonstrate that a request to preserve relevant information is unduly burdensome and thereby disproportionate to the needs of the case. Regardless of whether the issue is production or preservation, parties stand a better chance of establishing undue burden—and reducing the costs and other impacts of disproportionate discovery—if they develop metrics to substantiate their assertions.

[1] Al Otro Lado, Inc. v. Nielsen, 328 F.R.D. 408 (S.D. Cal. 2018).

[2] The court allowed DHS to eliminate one category of video footage since plaintiffs had not demonstrated the requested information was relevant to their claims. Id. at 422.

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.