Proportionality and Preservation: Getting The Horse In Front Of The Cart

This Inside Counsel article by contributing author Adam Cohen of Ernst & Young LLP, notes that while technology assisted review has helped address the economic burden of shifting through large volumes of data, the increasing costs associated with ESI preservation have become a forefront issue. Mr. Cohen addresses the concept of applying proportionality principles to ESI preservation and provides insight into the current and somewhat conflicting case law in this area. The author highlights the Rules Committee Notes associated with the proposed FRCP amendments which reflect proportionality as a factor to be considered in determining the reasonableness of a party’s preservation efforts with respect to Rule 37(e)’s spoliation sanctions. While Mr. Cohen indicates that “(i)n the evolution of attempts to control e-discovery costs, directing proportionality’s gaze to preservation fits perfectly,” he acknowledges the difficulties surrounding the quantification of preservation costs.

Read the full Inside Counsel article here.

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