Sedona Conference on Proportionality

The Sedona Conference's new Commentary on Proportionality in Electronic Discovery has dropped here. The Sedona Conference has set six principles to consider:

1. The burdens and costs of preserving ESI should be weighed against the uniqueness and potential value of the information when deciding on the scope of preservation: In a footnote, Sedona cites a decision in the E.D.N.Y. in 2016, Best Payphones v. City of New York, holding that a court should be sensitive to a party's sophistication in evaluating preservation efforts.

2. Discovery should focus on the needs of the case and be obtained from the least burdensome and least expensive sources. Proportionality is to be measured by the information that is available at the time of requests. It doesn't necessarily mean that the discovery is inadequate if a party doesn't appreciate its importance to the ultimate disposition of the case.

3. Undue burden, expense or delay resulting from a party's action should count against that party. However where a party's information retention policies serve important business or organizational purposes, the burden, delay, or expenses caused by those policies should not held against it.

4. The application of proportionality should be based on information rather than speculation. Affidavits, cost estimates, or additional research may be required to demonstrate the importance of information.

5. Nonmonetary factors should be considered in the proportionality analysis. The other factors are the importance of the issues at stake in the litigation; the parties' relative access to relevant information; the parties' resources; importance of discovery in resolving the issues; and whether burden outweighs the likely benefit.

6. Technologies to reduce cost and burden should be considered in the proportionality analysis. Sedona cites the S.D.N.Y.'s decision in Hyles v. New York City denying a plaintiffs' motion to force a defendant to use TAR as a basis for the position that the costs of technology may outweigh the needs of the case.