Seeking Proportionality in e-Discovery

The Sedona Conference Working Group on Electronic Document Retention and Production is readying yet another of its work papers with a goal of bringing some measure of reason to the chaotic world of electronic discovery. This paper (not yet available to the general public) will focus on the need for "proportionality" in electronic discovery. It has long been a challenge to balance the burdens and costs of complex e-discovery requests against the potential benefits to the parties, the process and the court. Far too often the cost of complying with e-discovery requests has overshadowed the true amount in controversy.

The citation to the case is lost somewhere in the recesses of memory, but the "poster child" for the campaign for porportionality might just be the Indiana district court case in which a school district was ordered to comply when an e-discovery request that the parties agreed would cost more have $100,000 to satisfy. The maximum recovery by the plaintiff in that case? Less than $100,000!

One of the challenges faced by the parties and the courts is the difficulty of getting a handle on the cost of e-discovery before undertaking the search and recovery project. As the players gain more experience, better estimates will be coming along but still those estimates are imprecise at best, sometimes nothing more the W.A.G.'s. Vendors will undershoot the estimates hoping to win the business. Trial lawyers will act as advocates for their respective clients with the requesting lawyers claiming the data is vital and the cost estimate is inflated; producing lawyers will try to aim for the high side on the estimates, hoping to resist discovery.

One answer is for the courts to seek advice and counsel from experts with no axe to grind. Special Discovery Masters can be enlisted for the purpose of evaluating competing estimates as well as advising the court on potential middle ground resolutions of such discovery disputes.

Obviously not every case can or should carry the cost of a special master. However, when hundreds of thousands of dollars are at stake (even potentially millions in some even mid-range lawsuits), spending a few dollars in advance to find the right balance may just be the ticket to achieving proportionality in e-discovery.