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February 10, 2016

The Interplay between Proportionality and Information Governance

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 at the Legal Tech conference in New York City on February 3, 2016 from 2:45 to 3:45. U.S. Magistrate Judge James Francis, U.S. Magistrate Judge Elizabeth Laporte, U.S. Magistrate Judge Frank Maas, and U.S. Magistrate Judge Andrew Peck will share their views and insights on the relationship between proportionality and information governance.

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.