Five Key Points from the Sedona Conference Commentary – Proportionality Series, Part 8
A multi-part series reviewing decisions on proportionality in eDiscovery since the December 2015 amendments to the Federal Rules of Civil Procedure
by Matthew Verga, JD, Xact Data Discovery
In the first Part of this series, we reviewed the amendments made to Federal Rule of Civil Procedure 26(b)(1) in December 2015. In the second Part, we reviewed one of the first decisions applying the amended rule. In the third Part, fourth Part, and fifth Part, we reviewed relevant cases from 2016 and 2017, and in the sixth Part, we pulled together the key points from our case law survey. In the seventh Part, we reviewed the Sedona Conference Principles of Proportionality, and in this final Part, we review five key points from its Comments.
The Role of Proportionality during Preservation
The first Principle in the Commentary addresses how proportionality should be taken into account during preservation, before litigation has commenced and the Federal Rules of Civil Procedure have become applicable. The 2015 Advisory Committee Notes to amended Rule 37(e) suggest that proportionality should be a factor in assessing the reasonableness of pre-litigation preservation efforts. The Sedona Conference Commentary fully endorses this analysis, but it wisely still suggests caution in preserving too narrowly at this early stage of the litigation process:
It is important to note that in applying principles of proportionality to preservation, a miscalculation can lead to the permanent loss of relevant information. In contrast, a miscalculation during production can usually be cured. In particular, at the preservation stage parties should be wary of applying too narrow a definition of what constitutes relevant ESI. [emphasis added]