Considering Proportionality: Electronic Discovery Best Practices

By Ralph Losey

Proportionality. Parties are expected to use reasonable, good faith and proportional efforts to preserve, identify and produce relevant information. This includes identifying appropriate limits to discovery, including limits on custodians, identification of relevant subject matter, time periods for discovery and other parameters to limit and guide preservation and discovery issues.

Disagreement between counsel on where to draw the proportionality line is to be expected because the premise of proportionality is some agreement as to the true value and importance of the case. This requires counsel to discuss both liability and damages in a realistic, non-posturing manner. Even non-binding agreements based at least in part on these core issues can be very difficult at the beginning of a case, but not impossible. For instance, all early mediation and case settlement depends on some common parameters beyond posturing as to case value. In especially difficult or contentious cases the early use of a mediator or special master to help the parties reach basic agreements on how discovery will be conducted can realize substantial savings over the rest of the case.