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    Electronically Stored Information: Balancing Proportionality & Preservation

    The preservation of electronically stored information can be expensive, time-consuming, and amenable to spoliation claims and accusations of unethical conduct. Here is a refresher on counsel's preservation obligations under Wisconsin's proportionality standard, along with tips for efficient preservation practices that are proportional to the needs of a given case.

    Timothy D. Edwards

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    The discovery of electronically stored information (ESI) can be daunting and complicated. Even when the rules surrounding the discovery of ESI are understandable, their application to existing technology raises unnecessary problems, including spoliation of evidence from flawed preservation efforts. To address these problems, and others, the Wisconsin Rules of Professional Conduct were amended in 2016 to emphasize that competent representation requires counsel to “maintain the requisite knowledge and skill by keeping abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology .…”1 Accordingly, counsel’s knowledge of the client’s claims and defenses, the location, volume and format of data, and familiarity with the client’s preservation obligations provide a necessary first step in competently managing ESI.2

    Competence also requires mastery of the proportionality standard, which now governs discovery in Wisconsin state courts and all federal courts.3 This article briefly outlines the development of the proportionality doctrine as it was codified in 2015 into the Federal Rules of Civil Procedure and, three years later, into the Wisconsin Rules of Civil Procedure. In addition to tracing the development of the proportionality doctrine, this article examines how the proportionality standard is properly applied throughout litigation, with special emphasis on preservation obligations. Practical tips also are included.

    Rule 26 and Wis. Stat. Section 804.01; Discovery Scope and Limits

    Fed. R. Civ. P. 26. The concept of proportionality has been embedded in the Federal Rules of Civil Procedure since 1983.4 When the burden and benefit test in Fed. R. Civ. P. 26(b) was first adopted, the intent of “proportionality” was to “deal with the problem of over-discovery … [and] guard against redundant and disproportionate discovery by giving the court authority to reduce the amount of discovery that may be directed to matters that are otherwise proper subjects of inquiry.”5

    Tim Edwardscom edwards tdemadison Tim Edwards, Wayne State 1989, is the owner of Edwards Law Group LLC, where he provides e-discovery consulting services and litigates construction, employment, and business disputes.

    Regarding the scope of discovery, federal court litigants previously were entitled to discover “any matter, not privileged, that is relevant to the claim or defense of any party ….”6 The court could limit discovery, however, if it found “that the discovery was more easily obtained from another source, including information already collected; that the requesting party has had sufficient opportunity to obtain discovery; or that the request is unduly burdensome or expensive.”7 Before the federal rules were amended in 2006, federal courts often relied on the seven-factor proportionality test from the seminal 2004 Zubulake opinion,8 which continues to influence this growing body of law.

    The Federal Rules of Civil Procedure were amended in 2006 to, among other things, provide additional substantive guidance regarding the proportionality standard. Specifically, the advisory committee provided a list of seven factors for assessing proportionality: 1) the specificity of the discovery requests; 2) the quantity of information from other and more likely accessed sources; 3) the failure to produce relevant information that seems likely to have existed but is no longer available on an easily accessed source; 4) the likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources; 5) predictions about the importance or usefulness of the information; 6) the importance of issues at stake in the litigation; and 7) the parties’ resources.9

    Amended Fed. R. Civ. P. 26(b)(1) now allows parties to “obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” The rule further provides that proportionality is determined by considering the following six factors: 1) the importance of the issues at stake in the action, 2) the amount in controversy, 3) the parties’ relative access to relevant information, 4) the parties’ resources, 5) the importance of the discovery in resolving the issues, and 6) whether the burden or expense of the proposed discovery outweighs its likely benefit.10

    On its face, amended Rule 26(b)(1) appears to represent a significant change that directly or indirectly redefined the scope of discovery in federal courts and, three years later, the Wisconsin state courts. Although many lawyers and commentators heralded this inclusion as a sea change in the advancement of discovery law, this optimism was not necessarily justified, primarily because Rule 26 did not change responsibilities of the court and parties to consider proportionality.11 In fact, most courts applying amended Rule 26(b)(1) noted that proportionality in discovery has always been part of the federal rules through old Rule 26(b)(2)(C)(iii).

    According to one well-respected federal magistrate judge: “[A]s new chapters and rule changes go, the [2015 amendments] are hardly seismic shifts. The proportionality concept became part of the rules over 30 years ago, in 1983, when Rule 26(b) was amended to require judges to limit discovery to ensure that the benefits outweighed the costs …. The amendment is designed to elevate awareness and get lawyers, litigants, and judges to pay more attention to the duties they have had for over three decades.”12

    Wisconsin and Proportionality. For many years, disputes regarding the proper scope of discovery in Wisconsin were governed by Wis. Stat. section 804.01(3), part of the Wisconsin Rules of Civil Procedure, which provides for an appropriate protective order “for good cause shown” to protect against “annoyance, embarrassment, oppression or undue burden or expense....”13 The 2010 amendments to the Wisconsin Rules of Civil Procedure introduced proportionality as a limit on discovery and a mechanism for resolving cost-shifting disputes in Wisconsin courts. These amendments mandate that the parties meet and confer regarding ESI before serving a request for production of documents or responding to an interrogatory that allows for the production of business records in lieu of an interrogatory answer.14 The stated purpose of this requirement is to “reduce the ultimate cost” of electronic discovery – a central component of the cost-shifting analysis.14 Regarding cost shifting and proportionality, the committee notes directed parties and the courts to the factors set forth in the advisory committee notes to the 2006 version of Rule 26(b).

    The 2010 amendments envisioned an ad hoc balancing test to resolve discovery disputes, emphasizing the meet-and-confer requirement. The test was optional, with the court potentially applying the balancing test of Wis. Stat. section 804.01(3), the Zubulake standard, or the specific cost-shifting factors of then Rule 26(b)(2)(B). In 2018, the Wisconsin Rules of Civil Procedure were amended to explicitly adopt the proportionality standard of the 2015 amendments to Rule 26(b)(1). The federal and Wisconsin proportionality standards currently are identical, pointing to federal case law for guidance until Wisconsin courts develop their own common law on this issue.

    Retirement of General Objections. The 2015 amendments also extend proportionality to discovery responses. For example, Fed. R. Civ. P. 34(b)(2) now requires parties to phrase objections to discovery requests with specificity, including the reasons for objections and whether any responsive materials are being withheld because of an objection. The Wisconsin Rules of Civil Procedure recognize this expectation, requiring the party objecting to document requests to “state with specificity the grounds for objecting to the request.”15

    These rules should pressure responding parties to promptly assess their electronic information and accurately state whether responsive information exists and whether any of it will be withheld. The amendments to Rule 26(b) are not, however, “intended to permit the opposing party to refuse discovery simply by making a boilerplate objection that it is not proportional, which left requesting parties uncertain whether any relevant and responsive information was withheld because of the objections.”16 Newly amended Fed. R. Civ. P. 26(g) also requires an attorney, under threat of sanction, to verify that a request or objection is proportional to the needs of the case.17

    Proportionality and Preservation

    Preservation and production are interrelated because considerations of proportionality are necessary in evaluating preservation obligations.18 Because proportionality is a “highly elastic concept … [it] cannot be assumed to create a safe harbor for a party that is obligated to preserve evidence but is not operating under a court-imposed preservation order.”19 Proportionality “may prove too amorphous to provide much comfort to a party deciding what files it may delete or backup tapes it may recycle” before that party files a motion for a protective order seeking to have a court define its preservation obligations.20 Accordingly, “[u]ntil a more precise definition is created by rule, prudence favors [either] retaining all relevant materials”21 or swiftly moving for a protective order. “Proportionality is at the very least relevant to a decision on a motion for a protective order, even if not determinative of it.”22

    In many cases, one party – usually the defendant – produces the vast majority of information, mainly because information is in that party’s possession and control. As noted above, the wide scope of information requested often leads to “over-production,” meaning the responding party is required to preserve and process substantial amounts of nonresponsive information that ultimately is provided to the other party at substantial cost. The proportionality standard is a more precise tool than previous balancing tests for leveling the discovery playing field in such “asymmetrical litigation.” However, “[t]he duty to preserve relevant discoverable information does not … give rise to an obligation to preserve every piece of information conceivably related to the general subject matter of the litigation. Such a rule would cripple large corporations … that are almost always involved in litigation.”23 Implicit in this observation is the notion of proportionality in preservation.

    Spoliation and the Duty to Preserve. “Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.”24 “This is an objective standard, asking not whether the party in fact reasonably foresaw litigation, but whether a reasonable party in the same factual circumstances would have reasonably foreseen litigation.”25 “[I]dentifying the boundaries of the duty to preserve involves two related inquiries: when does the duty to preserve attach, and what evidence must be preserved?”26

    Two additional questions arise in satisfying preservation requirements: how must a party go about fulfilling its ultimate obligation, and who is responsible for fulfilling it? The obligation to preserve evidence arises when the party is on notice that the evidence is relevant to litigation.27 Thus, the preservation requirement arises when a party “reasonably anticipates litigation.”28 “The duty to preserve evidence also includes an obligation to identify, locate and maintain information that is relevant to specific, predictable, and identifiable litigation.”29

    Once the duty to preserve is triggered, the litigant “must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents.”30 This step is only the beginning of a party’s preservation obligations.31 “Once a ‘litigation hold’ is in place, a party and [its] counsel must make certain that all sources of potentially relevant information are identified and placed ‘on hold’.”32 Then, “[c]ounsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched.”33 The duty to preserve discoverable information persists throughout the discovery process; a litigant must ensure that “all potentially relevant evidence is retained.”34 Counsel must be competently involved in this process.

    Sanctions: Rule 37(e). Fed. R. Civ. P. 37(e), in its previous form, standardized sanctions for discovery violations by providing a “safe harbor” for certain preservation failures (which Wisconsin has retained).35 This rule failed to provide comfort to companies that struggled to find the right balance of preservation to meet legal hold obligations, contributing to costly over-preservation.36

    To rectify this problem, new Rule 37(e) establishes a three-factor test for imposing sanctions for spoliation. It conditions the remedy available on whether the party had an “intent to deprive,” reserving severe sanctions for parties who intend to deprive opponents from use of the electronic information. Notably, this rule is limited to the loss of electronic information, not hard-copy documents or tangible items. It also forecloses reliance on inherent authority or state law to determine when sanctions should be imposed.

    Ultimately, Rule 37 calls for reasonable preservation behavior, and proportionality is part of that test. Parties who “demonstrate that they acted thoughtfully, reasonably, and in good faith in preserving or attempting to preserve” should be entitled to a presumption of having taken “reasonable steps.”37

    Sanctions: Wisconsin Spoliation Law. Fed. R. Civ. P. 37(e) does not apply in Wisconsin state courts, where spoliation issues are governed by common law.38 Wisconsin law defines spoilation as the “destruction or withholding of critically probative evidence resulting in prejudice to the opposing party.”39 The purpose of the Wisconsin spoliation doctrine – and the imposition of appropriate sanctions – is twofold: 1) to uphold the judicial system’s truth-seeking function, and 2) to deter parties from destroying evidence.40

    Wisconsin courts advance this purpose by applying a two-step analysis to determine whether spoliation occurred. First, courts consider “whether the party responsible for the destruction of evidence knew, or should have known, at the time it destroyed the evidence that litigation was a distinct possibility.”41 Second, courts weigh “whether the offending party destroyed documents which it knew, or should have known, would constitute evidence relevant to the pending or potential litigation.”42 As with Rule 37(e), these factors focus on the state of mind of the spoliating party and the resulting prejudice.

    When spoliation occurs, courts are empowered to impose a wide range of sanctions, including dismissal of a case. Again, the severity of the sanction is directly tied to the state of mind of the culpable party and the resulting prejudice. For example, dismissal is a proper sanction when “the party in control of the evidence acted egregiously in destroying the evidence.”43 Egregious behavior is “a conscious attempt to affect the outcome of the litigation or a flagrant, knowing disregard of the judicial process.”44

    The severity of dismissal is obvious, but other available spoliation sanctions can have an equally dramatic effect on litigation. These include independent tort actions against parties who intentionally or negligently destroy evidence, pretrial discovery sanctions, and adverse-inference jury instructions.45

    Preservation Obligations at Various Stages of the Case. If a preserving party wishes to invoke proportionality to decrease its ESI preservation obligations, it must develop actionable information (that is, metrics) to help quantify the preservation burden. Detailed metrics should reflect the resources a party will invest to preserve information that is likely to be requested.46 Those metrics could include the feasibility of different methods for preserving the requested information, the respective preservation costs of those methods, and the corresponding effect of preservation on a party’s information systems, worker productivity, and other business operations.

    In contrast, conclusory or self-serving statements fall short of the metrics courts require to satisfy the proportionality standard. Ultimately, parties possessing discoverable ESI must prepare to convince the court in eventual litigation that they took reasonable and timely pre-litigation steps to preserve ESI.

    The scope of the duty to preserve often changes depending on developments in the case. For example, “the parties may begin discovery without a full appreciation of the factors that bear on proportionality.”47 In turn, a party requesting discovery might have little information about the burden or expense of responding. Similarly, a party requested to provide discovery may have little information about the importance of the discovery to the requesting party.

    “Many of these uncertainties should be addressed in the parties’ early meet-and-confer efforts, including the Rule 26(f) conference [requiring the parties to confer early in the case to develop a discovery plan] and in scheduling and pretrial conferences with the court.”48 Of course, new information arising during discovery may drastically alter its scope, as will the context in which proportionality affects a party’s preservation obligations. The most common scenarios are addressed in the accompanying sidebar.

    Common Scenarios: Preservation Obligations at Various Stages of the Case

    The scope of the duty to preserve often changes depending on developments in the case. New information arising during discovery may drastically alter its scope, as will the context in which proportionality affects a party’s preservation obligations. The most common scenarios are addressed below.

    Prefiling: Case Has Not Been Filed or Is Not Known to the Putative Defendant. Preservation obligations can apply in the prefiling stage, especially in heavily regulated industries that face many claims and foreseeable litigation. Those same obligations become more immediate if the producing party has received notice of the claim through a demand letter, a preservation demand, or another communication.

    At that time, or earlier, counsel should consult Zubulake and implement a litigation hold because counsel knows of the claim and has a general sense of where the potentially relevant electronically stored information is located. Counsel should also contact the “key players” in the case, suspend the client’s document-retention system, institute a written litigation hold and, if necessary, provide training for employees on their preservation obligations (all of this should be carefully documented to defeat future challenges to the preserving party’s preservation efforts).

    The means and methods of such preservation will be applied in collaboration with IT personnel and corporate managers. Generally, there is no obligation to preserve inaccessible data,49 duplicative data, or legacy files from obsolete systems, nor is there a duty to preserve anything when litigation is not known or reasonably foreseeable.50 The prompt suspension of applicable document retention policies is one front-line defense against charges of prefiling spoliation.

    Preservation obligations also attach to the plaintiff early in the process, given the plaintiff’s knowledge of circumstances surrounding the intended dispute. The plaintiff has an obligation to preserve all potentially responsive information from multiple sources, including all computer and phone data. To satisfy this standard, social media, computers, and phones should be copied or shut down and stored separately to avoid the inadvertent destruction of data. If feasible, it might be more prudent to obtain a “mirror image” of contents of phones and computers. Again, all these efforts should be documented and disclosed to the court if there is a challenge to the reasonableness of the producing parties’ preservation efforts under Fed. R. Civ. P. 37(e) or Wisconsin spoliation law.

    Case Has Been Filed: No Court Involvement. At this phase, the parties should begin a dialogue about preservation, including starting to determine what they can agree on and anything they cannot. Good-faith cooperation of the parties engaging in dialogue may be considered by the court later in evaluating preservation efforts of each party.

    Many defendants will not be on reasonable notice of anticipated litigation until after the lawsuit is filed. From that point forward, the meet-and-confer process, which is underused, should provide a formidable defense against unnecessary accusations of spoliation. This is the time to address concerns regarding excessive preservation and potential spoliation, which should be assessed through the proportionality standard even though the court is not yet formally engaged with the case. If the parties cannot agree, preservation questions can later be submitted to the court, permitting parties to seek protective orders requiring preservation of certain information. Preservation issues should be raised promptly if there is a genuine concern about data being lost.

    Case Has Been Filed, Judge Is Available, and Parties Are Up to Speed. At this stage, a judge or magistrate can directly address discovery disputes. By now, the parties should have identified the universe of custodians and data sources likely to have relevant information that is proportional to the needs of the case. This is the flashpoint for preservation disputes, which usually ask whether the cost of preservation is proportional to the needs of the case.

    For example, assume A has filed a discrimination claim and has concerns about the defendant’s preservation efforts. If the value of the case is no greater than $100,000 and it will cost $60,000 to collect and preserve data with questionable relevance, the proportionality problem is straightforward. If the requesting party has meager resources and the information sought is highly relevant, the analysis changes, especially regarding the “amount in controversy” factor, which would be heavily influenced by the social value of the plaintiff’s claims (as opposed to their dollar value). “The Supreme Court has rejected proportionality of damages as a basis for a fee award,” in part because “a civil rights plaintiff seeks to vindicate important civil and constitutional rights that cannot be valued solely in monetary terms.”51

    Case Determination. At this point, the case has been resolved by dispositive motion, summary adjudication, or trial on the merits, and it is possible to look back at which documents, ESI, or other discoverable information proved to be useful or important to resolving the case. This would be the appropriate time for any party to seek postdisposition adjustment in cost shifting or cost sharing.

    However, any such analysis should be based on the totality of the circumstances, including what appeared to be reasonable based on what was known at the time preservation or production decisions were made. It is also an important consideration in settlement documents with significant e-discovery to address this cost-shifting issue.

    Case Over. The case has been resolved, and all appeals have been exhausted or appeal deadlines have run. The question is whether the court should impose “lookback sanctions” to address early discovery failures, including those that occurred during the preservation stage but were only recently discovered.

    Motion Practice: Strategic Considerations for Lawyers

    General Considerations. The proportionality standard is designed to govern the scope of permissible discovery but only when the court has specific information to properly evaluate proportionality. The proposed committee notes to Fed. R. Civ. P. 26 warn that the amendments do not permit “boilerplate objections,” but parties should timely object to discovery that clearly ignores proportionality considerations.

    These objections should be targeted (with time frames), reference specific subject matter, and include a brief, specific explanation why the request is not proportional to the needs of the case. Sampling or search terms should be considered in cases involving large amounts of data, particularly when inaccessible data adds expense to the production process. Protective orders that safeguard the inadvertent disclosure of privileged information can also lower production costs and expedite discovery. If necessary, the parties should meet and confer regularly to address ESI issues, even in the absence of a statutory obligation to do so.

    Proportionality should weigh heavily in drafting and discovery strategy. Given the volume of electronic data that is usually available in litigation, discovery requests should be “reasonably targeted, clear, and as specific as practicable.”52 For example, a document request seeking “all documents related to or concerning the X-Widget from 2006-2008” will usually be much less effective than a request seeking “all inspection reports by the City of Madison addressing the safety of the X-Widget from 2006-2008.” In all cases, counsel should anticipate cost-shifting factors and carefully draft discovery requests (and responses), considering each proportionality factor and anticipating later disagreement. Counsel should carefully document and verify good-faith efforts to resolve these issues if court intervention is required to address cost-shifting disputes.

    It is also vital to make specific and supportable proportionality objections. To avoid or minimize discovery, defense counsel must be prepared to demonstrate with facts and data why the request is not proportional. This will require a thorough understanding of the claims asserted – to show how the discovery at issue is not significant to resolving the case – and the available sources of information potentially offering less burdensome alternatives.

    Finally, the renewed emphasis on cooperation and the meet-and-confer process should encourage better communication and closer cooperation between counsel. “[T]he revised rule places a shared responsibility on all the parties to consider the factors bearing on proportionality before propounding discovery requests, issuing responses and objections, or raising discovery disputes before the courts.”53 Frank conversations with opposing counsel about preservation efforts, discovery sought, and proportionality concerns can inspire creative solutions benefiting both sides.

    Motion to Compel. Motion practice addressing the proportionality standard imposes burdens on both parties that require knowledge of claims, strategy, and careful record-keeping. Although Rule 26(b)(1) does not impose a “burden of proof”54 on the requesting or producing party,55 the same cannot be said for a motion to compel under Fed. R. Civ. P. 37(a)(3), for which a party moving to compel discovery responses bears the initial burden to demonstrate that the requested discovery satisfies Rule 26(b)(1).

    “[A] party claiming that a request is important to resolve the issues [in the case] should be able to explain the ways in which the underlying information bears on the issues as that party understands them” and how the requests satisfied the proportionality and other requirements of Rule 26.56 Once a party moving for relief under Rule 37(a) meets the initial “burden of proving the relevance of the requesting information,” the party resisting the discovery must specifically demonstrate how the request is burdensome or disproportionate.

    Rule 26(c): Protective Orders. Rule 26(c) provides the court authority, for good cause, to “issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.”57 The party seeking a protective order has the burden of proof and cannot sustain that burden or establish the requisite good cause merely by offering conclusory statements. Instead, the moving party “must make ‘a particular and specific demonstration of fact in support of its request,” particularly when the moving party is seeking relief based on a claim of undue burden or expense. The claim of good cause should be supported by affidavits or other detailed explanations as to the nature and extent of the burden or expense. Rule 26(c) sets a rather high hurdle for the moving party.

    If the moving party makes the requisite showing of good cause, Rule 26(c) shifts the burden of proof to the party seeking discovery or disclosures. The nonmoving party must then show that the requested discovery is relevant to the claims and defenses in the action and is proportionate to the needs of the case. Based on that proportionality analysis, the court can deny the requested discovery entirely, limit discovery or disclosure to specific conditions, “limit the scope of disclosure or discovery to certain matters,” or specify the manner in which discovery will proceed.

    Rule 26(b)(2)(B): Inaccessible Data. Burden shifting also arises in Fed. R. Civ. P. 26(b)(2)(B), which provides that a party responding to requests for production “need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.” A party invoking the protections of Rule 26(b)(2)(B) bears the initial burden of proof. As with a motion for protective order via Rule 26(c), this burden cannot be sustained with conclusory assertions that production will be time consuming or expensive.

    Instead, “the responding party should present details sufficient to allow the requesting party to evaluate the costs and benefits of searching and producing the identified sources.” Assuming the producing party can satisfy this threshold showing, the burden of proof then shifts to the requesting party to show good cause why the court should “nonetheless order discovery from such sources.”58

    Also of Interest

    Maintaining the Right Balance: Proportionality and Electronic Discovery

    Webcast Seminar
    Maintaining the Right Balance: Proportionality and Electronic Discovery

    Join author Tim Edwards on a journey to more efficient, economical discovery. The duty to preserve evidence requires a party to safeguard potentially relevant information in the face of reasonably foreseeable litigation. In many cases, the failure to comply with this obligation opens up both counsel and client to potential sanctions that can change the dynamics of litigation.

    Maintaining the Right Balance: Proportionality and Electronic Discovery, a State Bar of Wisconsin PINNACLE® webcast seminar, will show you how to meet your ethical obligation to take affirmative efforts to preserve potentially relevant ESI and to utilize the doctrine of proportionality to drive this process, even at the earliest stages of litigation.

    Develop a winning strategy.

    You’ll learn how to:

    • Target your approach to defensible preservation strategies at various phases of litigation
    • Preserve necessary information without paying a fortune
    • Fulfill your duty of competence by avoiding spoliation claims and unnecessary sanctions
    • Strategically apply cost-shifting strategies before disputes arise

    Right size your efforts in the discovery phase with help from Maintaining the Right Balance: Proportionality and Electronic Discovery.

    State Bar of Wisconsin PINNACLE webcast seminar: $169 (member), $219 (nonmember). Credits: 3 CLE, 1 EPR. Original webcast seminar Oct. 7 with replays through Jan. 29, 2021. For replay dates and to register, click here.

    Conclusion

    The proportionality standard requires a fact-intensive evaluation of the requesting and responding parties’ discovery rights and obligations, even at the preservation phase of a lawsuit. Even when these rights and obligations seem clear, proportionality means very little without cooperating lawyers and active judges who understand and enforce this important standard. “Proportionality begins with the parties and lawyers who apply and invoke it, but it ends with judges who enforce it. Unless judges actively manage the cases they preside over to keep discovery both within the defined scope and consistent with the parties’ right to get the information within that scope, these rule amendments are no more likely to succeed than the predecessors.”59 Time will tell.

    Meet Our Contributors

    Your practice focuses on litigation and electronic discovery. What drew you to that practice area?

    Tim EdwardsWhen I graduated from law school, I knew I wanted to be a litigation attorney. In the meantime, I stumbled across electronic discovery, which immediately caught my attention given its obvious importance. I was drawn to this area of the law because it continually changes and provides many opportunities to be creative and proactive, even in smaller cases that involve electronic evidence.

    com edwards tdemadison Tim Edwards, Edwards Law Group LLC, Oregon.

    Become a contributor! Are you working on an interesting case? Have a practice tip to share? There are several ways to contribute to Wisconsin Lawyer. To discuss a topic idea, contact Managing Editor Karlé Lester at (800) 444-9404, ext. 6127, or email org klester wisbar wisbar klester org. Check out our writing and submission guidelines.

    Endnotes

    1 SCR 20:1.1, Committee Notes, comment 8.

    2 Zubulake v. UBS Warburg LLC (Zubulake V), 229 F.R.D. 422, 449-50 (S.D.N.Y. 2004).

    3 Given the similarity between the two standards, federal law is one source of persuasive guidance regarding the Wisconsin proportionality standard, regarding which there is little, if any, case law. See State v. Evans, 2000 WI App 178, ¶ 8 n.2, 238 Wis. 2d 411, 617 N.W.2d 220 (“[W]here a state rule mirrors the federal rule, we consider federal cases interpreting the rule to be persuasive authority.”).

    4 Fed. R. Civ. P. 26 advisory committee note – 2015 (“Most of what now appears in Rule 26(b)(2)(C)(ii) was first adopted in 1983”).

    5 Fed. R. Civ. P. 26 advisory committee note – 2015.

    6 Fed. R. Civ. P. 26(b)(1).

    7 Hagemeyer N. Am. Inc. v. Gateway Data Scis. Corp., 222 F.R.D. 594 (E.D. Wis. 2004)

    8 Zubulake v. UBS Warburg LLC (Zubulake III), 217 F.R.D. 309, 322-23 (S.D.N.Y. 2003).

    9 Fed. R. Civ. P. 26(b)(1).

    10 Id.

    11 Fed. R. Civ. P. 26 advisory committee note – 2015.

    12 Lee H. Rosenthal & Steven S. Gensler, Achieving Proportionality in Practice, 2015 Judicature 199.

    13 See Wis. Stat. § 804.01(2)(am).

    14 Id.

    15 Fed. R. Civ. P. 26 advisory committee note – 2015.

    16 Id.

    17 Fed. R. Civ. P. 26(g).

    18 See Orbit One Commc’ns Inc. v. Numerex Corp., 271 F.R.D. 429, 436 n.10 (S.D.N.Y. 2010) (“Reasonableness and proportionality are surely good guiding principles for a court that is considering imposing a preservation order....”); see also The Sedona Conference, The Sedona Conference Commentary on Proportionality in Electronic Discovery, 11 Sedona Conf. J. 289, 291 (2010) (“The burdens and costs of preservation of potentially relevant information should be weighed against the potential value and uniqueness of the information when determining the appropriate scope of preservation”).

    19 Orbit One Commc’ns, 271 F.R.D. at 436 n.10; Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., 685 F. Supp. 3d 456, 466 (S.D.N.Y. 2010) (“Determining the scope of preservation ‘depends heavily on the facts and circumstances of each case and cannot be reduced to a generalized checklist of what is acceptable or unacceptable.’”).

    20 Orbit One Commc’ns, 271 F.R.D. at 436.

    21 Id. (citing Zubulake v. UBS Warburg LLC (Zubulake IV), 220 F.R.D. 212, 218 (S.D.N.Y. 2003)).

    22 See Pippins v. KPMG LLP, 279 F.R.D. 245, 255-56 (S.D.N.Y. 2012).

    23 Zubulake IV, 220 F.R.D. 212.

    24 United State v. Kitsap Physicians Serv., 314 F.3d 995, 1001 (9th Cir. 2002).

    25 Micron Tech. Inc. v. Rambus Inc., 645 F.3d 1311, 1320 (9th Cir. 2011).

    26 See Zubulake IV, 220 F.R.D. at 227.

    27 Id.

    28 Id. at 218; Pension Comm., 685 F. Supp. 2d at 466.

    29 Apple, 881 F. Supp. 2d at 1136(internal quotation and citation omitted).

    30 Zubulake V, 229 F.R.D. at 431.

    31 Id. at 432.

    32 Id.

    33 Id.

    34 Id. at 432-33; see also Fed. R. Civ. P. 26(e).

    35 Wis. Stat. § 804.12(4m).

    36 Fed. R. Civ. P. 37(e) advisory committee note – 2015 (aggressive preservation efforts “can be extremely costly” and inconsistent standards for spoliation sanctions “caused litigants to expend excessive effort and money on preservation in order to avoid the risk of severe sanctions …”).

    37 Principle 1, The Sedona Conference, Commentary on Proportionality in Electronic Discovery, 14 Sedona Conf. J. 155, 162 (2013) (“The burdens and costs of preserving potentially relevant information should be weighed against the potential value and uniqueness of the information when determining the appropriate scope of preservation”).

    38 For further information regarding preservation obligations and spoliation claims in Wisconsin, see Timothy D. Edwards, E-Discovery, Who Pays? 85 Wis. Law. (Oct. 2012).

    39 Neumann v. Neumann, 2001 WI App 61, ¶ 79, 242 Wis. 2d 205, 626 N.W.2d 821.

    40 Insurance Co. of N. Am. v. Cease Elec. Inc., 2004 WI App 15, ¶ 16, 269 Wis. 2d 286, 647 N.W.2d 886.

    41 Id. ¶ 15.

    42 Id.

    43 American Family Mut. Ins. Co. v. Golke, 2009 WI 81, ¶ 42, 319 Wis. 2d 397, 768 N.W.2d 729.

    44 Id.

    45 Neumann, 2001 WI App 61, ¶ 80, 242 Wis. 2d 205; see also Wis. Stat. § 804.12(2)(a) (outlining applicable discovery sanctions, including dismissal).

    46 See Favro, Reducing ESI Preservation Obligations With Proportionality and Metrics (April 2019).

    47 Fed. R. Civ. P. 26 advisory committee note – 2015.

    48 Paul W. Grimm, Are We Insane? The Quest for Proportionality in the Discovery Rules of the Federal Rules of Civil Procedure, 36 Rev. of Litig. No. 1 (Winter 2017).

    49 See Zubulake V, 220 F.R.D. at 218(“As a general rule, that litigation hold does not apply to inaccessible backup tapes (e.g., those typically maintained solely for the purpose of disaster recovery), which may continue to be recycled on the schedule set forth in the company’s policy. On the other hand, if backup tapes are accessible (i.e., actively used for information retrieval), then such tapes would likely be subject to the litigation hold.”).

    50 Wis. Stat. Ann. § 804.01(e).

    51 Cullens v. Georgia Dep’t of Transp., 29 F.3d 1493 (quoting City of Riverside v. Rivera, 477 U.S. 561, 574 (1986) (in a case involving 42 U.S.C. § 1988, upholding a fee award seven times as large as the damages award).

    52 Seventh Circuit Electronic Discovery Comm., Principles Relating to the Discovery of Electronically Stored Information, Principle 1.03 (2010).

    53 Fed. R. Civ. P. 26 advisory committee note – 2015.

    54 See Wagstaffe Grp., Practice Guide: Federal Civil Procedure Before Trial § 38-I (Matthew Bender 2019) (reviewing various burdens in motion to compel).

    55 The amendments to Fed. R. Civ. P. 26(b) do not alter the predicate burdens on the party resisting discovery. To resist a motion to compel, the party resisting discovery based on undue burden or expense must show that the discovery request would actually impose an undue burden or expense. SeeEdeh v. Equifax Info. Servs. LLC, Civil No. 11-2671 (SRN/JSM), 2013 WL 2480676 at *4 (D. Minn. June 10, 2013) (unpublished) (“Broad allegations of burdensomeness, without more, will not suffice.”).

    56 Fed. R. Civ. P. 26 advisory committee note – 2015.

    57 Fed. R. Civ. P. 26(c).

    58 Fed. R. Civ. P. 26(b)(2) advisory committee note – 2015.

    59 Lee H. Rosenthal & Steven S. Gensler, From Rule Text to Reality: Achieving Proportionality in Practice, 99 Judicature 3 (2015).




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