While proportionality seems to be significant in personal ads, ALM’s Legaltech NY 2016 left me thinking it wasn’t all that important in electronic discovery, despite the much-ballyhooed change in the Federal Rules introducing the concept. In the first place, as pointed out in one of the sessions, proportionality as a concept has always been implicit in the rules and parties have always been free to come to court with a complaint about overly-burdensome discovery requests, and in the second place, recent changes in information governance have dramatically changed the field.
If, like me, you have previously shied away from the term information governance, you cannot any longer because an entity that does not practice information governance will have a hard time making a proportionality argument. If you keep everything you’ve ever done, it’s not your opponent’s fault it might cost millions to go through it all, especially now that there is a safe harbor that will protect you from most storms.
Rule 37 understands that corporations should be encouraged to purge unnecessary information and limits sanctions accordingly. Routine deletions up until a notice of impending litigation is received are protected as long as they have been in fact routine. Even after notice of impending litigation is, or should have been, received or acknowledged, the rule now requires spoliation with an intent to deprive in order for the most severe (‘case-ending’) sanctions to be appropriate. The courts henceforth will look to see if the information should have been preserved in anticipation of litigation, if reasonable steps were taken to preserve it, and if it can be restored or replaced. As was noted, establishing an intent to deprive standard is a high hurdle, with at least one commentator noting that the rules “went out of their way” to avoid establishing exactly who bears it.
By the same token, information governance should involve the input of the eDiscovery team, just to make sure the safe harbor has in fact been sailed into, and must take into account the ever-changing methods by which we communicate. So, if you’re up on eDiscovery, but not IG, it would appear you’re only halfway there.