The Sedona Conference Commentary on Proportionality

As discussed in a blog back in January, 2017 is the year of proportionality.

The Sedona Conference Working Group on Electronic Document Retention & Production (WG1) recently released a new version of its publication, The Sedona Conference® Commentary on Proportionality in Electronic Discovery. This is the working group’s third iteration of this publication and is intended to address the 2015 amendments to the Federal Rules of Civil Procedure (FRCP).

This latest version focuses on the amendments to FRCP Rules 26 and 37, emphasizing the importance of proportionality in discovery. The authors note the balance of burden against benefit, stress that reasonableness depends heavily upon the facts within each case and underscore the importance of proactive communication between the parties throughout the litigation process. Additionally, the prominence of proportionality means that the amount in controversy is now only one of many factors that courts use to define the scope of discovery.

Specifically, the Sedona publication examines six proportionality principles:

1. The burdens and costs of preserving relevant electronically stored information should be weighed against the potential value and uniqueness of the information when determining the appropriate scope of preservation.
2. Discovery should focus on the needs of the case and generally be obtained from the most convenient, least burdensome and least expensive sources.
3. Undue burden, expense or delay resulting from a party’s action or inaction should be weighed against that party.
4. The application of proportionality should be based on information rather than speculation.
5. Nonmonetary factors should be considered in the proportionality analysis.
6. Technologies to reduce cost and burden should be considered in the proportionality analysis.

This updated document is another valuable resource for litigation teams dealing with the implications of the 2015 FRCP amendments. Commendations to the drafting team, and all those involved in the Sedona Conference!