One of the most significant issues affecting corporate legal departments is the cost of discovery. As electronically stored information (ESI) continues to multiply, the costs to organizations for preserving and reviewing that information seemingly increase in corresponding fashion. Despite this challenging trend, organizations that are seeking to reduce their e-discovery costs are finding success in doing so through the legal doctrine of “proportionality.”
Proportionality empowers courts to restrict the liberal bounds of federal discovery practice by requiring that the benefits of discovery be commensurate with its burdens. For example, Rule 26(b)(2)(C) limits discovery where requests are unreasonably cumulative or duplicative, the discovery can be obtained from an alternative source that is less expensive or burdensome, or the burden or expense of the discovery outweighs its benefit. Rule 26(g) enforces the proportionality mandate by requiring courts to impose sanctions on those who do not conduct discovery in a proportional manner.
While courts are drawing on proportionality to discourage abusive tactics, they are simultaneously using the doctrine to encourage organizations to defensibly delete ESI, especially for preservation purposes. This means that an organization is free to implement reasonable information retention policies, which discard ESI not subject to a preservation duty.