• Trial Tips from Nextpoint •
One of the most devilish problems in litigation is proportionality – figuring out how to keep the cost of managing evidence in control while serving the interests of justice. Courts have made it clear any party has a duty to maintain potentially relevant evidence as soon as any future litigation is likely. That means parties have to think about keeping costs in proportion well before they even know how big or complicated a matter might become.
For small and solo firms with finite resources, keeping the cost of discovery in proportion to the likely disposition of a case is especially important. Fortunately, the courts take this issue seriously as well. Proportionality is a factor in the evaluation of efforts made to identify custodians and sources of ESI and to preserve it. As the court said in Rimkus v. Cammarata, (S.D. Tex. Feb. 19, 2010), “Whether preservation or discovery conduct is acceptable in a case depends on what is reasonable, and that in turn depends on whether what was done — or not done — was proportional to that case and consistent with clearly established applicable standards.”
How Much Does Justice Cost?
To support a proportionality analysis, courts have relied on balancing tests that weigh the potential value of evidence to a matter versus the cost of finding such evidence. The scary part for most lawyers is that this analysis depends heavily on the facts and circumstances of each case and cannot be reduced to a generalized checklist of what is acceptable or unacceptable. Knowing this, lawyers for the producing party should be prepared to discuss, in detail, whether such evidence is likely to exist and what the cost will be to produce. Likewise, requesting parties should have detailed information about why data is valuable and what it might cost to discover.
Courts have shown very little patience with parties that either do not have such information or try to obscure the facts with hypothetical or inflated cost estimates. Phased discovery can save time and money if parties agree to limit initial collection efforts to the key custodians. If initial efforts do not get what is needed, then a new, expanded phase of discovery can begin. This limits the scope of discovery without handcuffing parties later, provided opposing counsel hammer out an agreement early on. Why demand the ESI from every potential witness in a case when a more targeted approach might better serve your needs?
The bottom line is that parties must engage in a rigorous self-examination and be prepared to provide opposing counsel with detailed information about how much evidence will likely be relevant to the case and how much it will cost to recover it. Proportionality is a lofty goal in litigation, and one that will likely always be undermined by changing technology and the vagaries of eDiscovery. But small and medium sized firms that understand the emerging case law should be able to not only head off the issue, but can put themselves at an advantage in any matter that should arise.
Litigation Tip: Whenever possible, agree to limit initial collection efforts to the key custodians and agree that if discovery of their ESI proves fruitful, parties can decide whether to collect from other more peripheral players. This allows parties to find key evidence with minimal cost and disruption, but allows for more thorough investigations if evidence proves more difficult to obtain than initially thought.