• Reasonableness and Proportionality in E-Discovery
  • June 22, 2012
  • Law Firm: Dressman Benzinger LaVelle psc - Crestview Hills Office
  • A recent decision out of the Southern District of Texas, Rinkus Consulting Group, Inc. v. Cammarata,1 offers guidance to an attorney tasked to assess the e-discovery burdens of a case.  Judge Lee Rosenthal, chair of the Judicial Conference Committee on Rules of Practice and Procedure,2 authored the opinion.  Her status as chair of the conference committee adds authority to her opinions on e-discovery issues.

    The opinion addresses many e-discovery issues, but this post focuses on what is perhaps its key holding - that reasonableness and proportionality govern the court's determination of whether a party's e-discovery conduct is acceptable.3  Judge Rosenthal writes:  "whether preservation or discovery conduct is acceptable in a case depends on what is reasonable, and that in turns depends on whether what was done - or not done - was proportional to that case and consistent with clearly established applicable standards."

    By introducing the concept of reasonableness and proportionality into the e-discovery discussion, Judge Rosenthal has addressed an issue well known to civil litigators - the value of the case dictates the amount of time and effort that can be devoted to litigating it.  A case worth $1M almost always generates more legal efforts than a case worth $10K.  On this point, Judge Rosenthal references The Sedona Principles on e-discovery, quoting as follows:  "Electronic discovery burdens should be proportional to the amount in controversy and the nature of the case.  Otherwise, transaction costs due to electronic discovery will overwhelm the ability to resolve disputes fairly in litigation."

    The take-away from Judge Rosenthal's opinion on reasonableness and proportionality is that an attorney must carefully asses a case to assure acceptable discovery conduct.  Today, that means not only assessing paper, but also electronic data.   As part of this assessment, an attorney can weigh the relative value of the case to the burden of engaging in e-discovery.  A smaller case may require conduct as simple as preserving a hard drive.  A larger case might warrant a system-wide effort to preserve electronic data, including conducting interviews and preserving voice messages and text messages.

    Judge Rosenthal's opinion provides clear guidance in the evolving field of e-discovery.  The standard of reasonableness provides comfort to the attorney assessing the appropriate scope of e-discovery in a given case.

    1 688. F.Supp. 2d 598
    2 Chief Justice John Roberts appointed her to this position in 2007.  Wikipedia.
    3 Rimkus at 613