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e-Discovery: Proportionality, Technology and Practice Standardization

  • ESigns Blog

Posted on November 3rd, 2010

Principle 6 of the just released Sedona Conference Commentary on Proportionality in Electronic Discovery provides that:

Technologies to reduce cost and burden should be considered in the proportionality analysis

While most of the provided commentary (parties should meet and confer, etc.) will be familiar to eDiscovery adepts, there is some that is more novel (clue: no supporting footnotes or citations), viz.,

Parties and law firms that are involved in a significant amount of electronic discovery may choose a standard tool that meets their overall needs. The fact that the standard tool is not the best fit for an individual case should not be held against the firm or the party unless it is conspicuously inadequate for the case, as might happen where the volume of information is unusually high. Parties and law firms may have to consider other tools for cases that exceed the capacity of the standard tool. (Italics added.)

A few thoughts:

Except in those still relatively uncommon instances where parties are hosting review platforms themselves, the standard tools chosen by parties that would be relevant here would seem to be those used for identification, preservation and collection. However, the only specific caveats raised relate to the capacity to handle high volumes, which speaks almost exclusively to post-collection processing and review platforms.

The statement that the choice of a standard tool which is not the best fit for a particular case “should not be held against the firm or the party unless it is conspicuously inadequate for the case, as might happen where the volume of information is unusually high” is no safe harbor, but a standard of conspicuous inadequacy could still be rather useful as a bulwark in some cases.

The language could also assist law firms and general counsel offices in making  a case not only for selecting and deploying the right standard tools but also, by arguably giving some measure of protection against technological obsolescence,  doing so sooner rather than later.

Of course, what is a rule without exceptions? In addition to the capacity caveats, the commentary ends on this note:

While technology may create efficiencies and cost savings, it is not a panacea and there may be circumstances where the costs of technological tools outweigh the benefits of their use.

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