Proportionality

In a fairly short opinion and order, the district court in Weston v. DocuSign, Inc. analyzed whether the parties were entitled to the production of text messages from former employees’ personal devices and potential piercing of the attorney work product privilege. The issues in this opinion are not necessarily novel but illustrate significant concerns for litigants.

In a world where the lines between our personal and private lives are increasingly blurry, the possibility of discovery on personal devices should come as a surprise to no one, and it is, of course, a litigation disaster to have the work product privilege protections pierced and to be ordered to turn over attorney notes, witness lists, and witness communications on the very subject of the litigation. So, what is the take-away for litigation counsel with respect to protecting the work product privilege?

In Part Two of this blog series, I discuss a recent case regarding noncompliance with preservation provisions in an ESI protocol and provide best practices for negotiating and drafting an ESI protocol. In Part One of this series (which you can find here), I analyzed how courts have resolved ESI protocol disputes with TAR and metadata provisions.

Document management systems allow users to send a link to a document directly from the system, ensuring that all recipients receive the same, most up to date version, and, often most importantly when it comes to efficiency, ensuring that only one person is working in a draft document at a time. When we email links to these documents, the document itself is not attached to the email; rather, a hyperlink to the document where it is housed on the document management system is attached. As an e-discovery professional, my next thought is….how do we handle these links in discovery? At least one court has grappled with this question and its decision sheds new light on how we can handle hyperlinked attachments in our own cases.

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.

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.

There is often a lot of discussion around the processing and review of documents in a litigation, most likely because these phases end up costing the most money and taking the most time. What is often overlooked, however, is the collection process and how that phase sets the tone for the rest of discovery, including overall case strategy, knowledge gathering and cost thresholds for the case. In this blog, I lay out some best practices that can be followed to collect data in a sound manner while keeping costs reasonable and gathering all relevant information.