Data Production

Two recent decisions highlight the usefulness of phased e-discovery as a tool to satisfy Rule 26(b)(1)’s ever-important proportionality requirement. Model orders for patent cases in numerous courts require phased discovery, typically phasing email discovery to occur after other discovery and only if deemed necessary. However, phased discovery is becoming prevalent in other types of cases as well.

It’s a Friday afternoon and your weekend is about to start…and yes - you guessed it…a last minute production request comes in and your plans are no longer the same. Like many other e-discovery professionals, I’ve been in this position too many times to count. To ensure that I remember all of the various conditions that should be considered and checked and double-checked in preparing productions, I recommend using a checklist to make sure you are top of all of it!

As you recall, in December of 2015, the amended FRCP 26(b)(1) sought to address the escalating burdens associated with data preservation and production by emphasizing proportionality and defining the scope of discovery. As the latest proportionality rulings show, Rule 26(b)(1) is having an impact on limiting the scope of discovery based on the associated expense and some state courts are even following the federal courts’ lead in enforcing proportionality. Interestingly, while expense continues to be a factor in the proportionality argument, parties’ objections on the basis of proportionality have extended to nonmonetary factors as well, including privacy. As a result, some courts are now recognizing privacy as a consideration in determining whether the discovery sought is proportional to the needs of the case.

This is Part Three of a continuing series on ESI basics. In this series, we cover some of the terms used most often on the tech-side of e-discovery. In Part One, we provided an overview of PSTs. You can find that article here. In Part Two, we provided a primer on data processing. You can find that article here.  Whether this is an introduction to you or a refresher, and whether you are an attorney, member of an in-house team or data analyst, this information may come in handy in your practice.