The recently enacted amendments to the Federal Rules of Civil Procedure have brought a certain amount of hype to the eDiscovery world. While the amendments have been greatly anticipated for the potential impact they could have in eDiscovery, some have questioned whether the changes will have any noticeable effect on the current discovery process.
Despite these doubts, courts appear to be embracing the revised rules with vigor. Indeed, as discussed in a recent article published by Bloomberg BNA publication Big Law Business, several decisions interpreting the amended rules have already been issued in the nearly two months since they became effective. While the decisions range from spotlighting rule 1’s call for increased cooperation among litigants to the imposition of sanctions under rule 37(e), the topic drawing the most attention is that of proportionality under amended rule 26(b)(1). With several cases having already adopted the “reasserted” proportionality standards, a trend is developing that suggests proportionality could become the new benchmark of federal discovery practice.
As the focus on proportionality starts having a greater impact in discovery, the question remains whether it can have a role in the information governance process. The impact of proportionality standards on information governance – particularly information retention policies and pre-litigation document preservation questions – has been mostly unaddressed until recently. This is because proportionality is a “highly elastic,” “amorphous” concept that does not provide express direction on whether certain materials must be retained upstream in anticipation of downstream litigation. In the absence of exact guidance, many organizations have been reluctant to invoke notions of proportionality to eliminate data stockpiles or revisit other issues relating to information governance.
Nevertheless, the recent amendments to rule 37(e) may cause some organizations to reconsider using proportionality to address information governance questions. In its comments to the amended rule, the advisory committee makes clear that proportionality standards have a role in determining the reasonableness of an organization’s efforts to preserve relevant information. Enterprises may choose to eliminate sources of data, particularly if there are less expensive yet equally effective ways of keeping related classes of information. While they will likely “need to provide specifics” about those decisions to substantiate their reasonableness, organizations should consider making good faith, proportionate decisions regarding the pre-litigation disposition of electronically stored information.
While the prospect of applying proportionality standards in the context of information governance is starting to gather momentum, many questions remain regarding the interplay between these two disciplines. For those seeking answers, we invite you to join us for a robust discussion of proportionality and information governance