MULTNOMAH BAR ASSOCIATION OCTOBER 26, 2010

E-DISCOVERY IN STATE COURTS Seth H. Row

Parsons Farnell & Grein LLP srow@pfglaw.com

I. PRESERVATION OBLIGATIONS AND SPOLIATION OF ELECTRONICALLY STORED INFORMATION

The information below draws on cases from outside of Oregon, and involving mostly federal rules of civil procedure. However, now that electronically stored information (ESI) will be expressly subject to discovery in Oregon state court practice, the same rules and principles should be generally applicable to any case being litigated in Oregon courts.

Spoliation of evidence occurs when a piece of information that is relevant to a particular matter in litigation is destroyed or rendered inaccessible. The concept of “spoliation” encompasses many kinds of conduct, from the merely negligent to the willful. Parties have a duty to guard against spoliation of evidence. With the advent of electronic discovery, spoliation issues have regained prominence. Therefore, practitioners need to understand A) when the duty to preserve – that is, to guard against spoliation – is triggered; B) what the ramifications of spoliation are (which is important to know in large part in order to convince others, particularly your clients, that they need to take the duty to preserve seriously); C) how to protect yourself and your client from a claim of spoliation; D) what to do if you suspect that the other side has spoliated evidence.

A. Triggering the Duty to Preserve - Pre-Litigation Duties - Document Retention Policies

It is clear that the duty to preserve evidence begins when a case is filed. However, the duty to preserve evidence, including electronic evidence, may arise before a claim is filed. Guidance for when this obligation arises with regard to electronic information is the same as for paper documents: the obligation to preserve arises whenever a party reasonably should know that litigation is forthcoming. See, e.g., Silvestri v. General Motors Corporation, 271 F.3d 583, 591 (4th Cir. 2001) (duty to preserve evidence arises when party reasonably should know that evidence may be relevant to anticipated litigation).

In a few cases courts have sanctioned parties who destroyed documents pre-filing. What is often at issue in these cases is the reasonableness of the party's document retention/destruction policy, which is usually offered to excuse or explain the destruction. Courts have long recognized that a reasonable retention policy may be the basis for a defense to spoliation. See, e.g., Arthur Anderson LLP v. United States, 544 U.S. 696, 705, 125 S. Ct. 2129, 2135 (2005) ("It is, of course, not wrongful for a manager to instruct its employees to comply with a valid document retention policy under ordinary circumstances."); Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 69 (S.D.N.Y. 1991) (potential evidence destroyed under record retention policy demonstrated that destruction was negligent and not intentional); Carlucci v. Piper Aircraft Corporation, 102 F.R.D.

427, 481-82 (S.D. Fl. 1984) (finding that good faith destruction of information pursuant to bona fide document retention policy could justify failure to produce documents in discovery).

As has always been the case with paper documents, once a party is on notice that documents may be relevant (whether or not a discovery request has been made), it has a duty to suspend any retention/destruction policy. The failure to do so may result in sanctions. Wiginton v. C.B. Richard Ellis, Inc., 02C-6832, 2003 W.L. 22439865, at *7 (N.D. Ill. October 27, 2003) (failure to suspend routine document retention policy once party is put on notice that documents scheduled to be destroyed may be relevant in litigation will cross from negligence to bad faith).

The following cases are examples of courts holding that a document retention policy that allowed documents to be destroyed was reasonable: United States v. Tabor Extrusions, L.P., No. 400CV00255, 2001 LEXIS 24600, at *8-9 (E.D. Ark. December 27, 2001) (government's destruction of documents under retention policy calling for destruction after six years and three months was reasonable; absent evidence that government should have known documents would become material, no sanction was appropriate); McGuire v. Acufex Microsurgical, Inc., 175 F.R.D. 149, 155-56 (D. Mass. 1997) (employers' policy allowing managers to discard drafts of internal investigation reports was reasonable).

The following cases are examples of the cases in which the court held, or at least had evidence to suspect, that the retention policy being offered as a defense to destruction of records was not reasonable: Rambus, Inc. v. Infineon Technologies A.G., 220 F.R.D. 264, 286 (E.D. Va. 2004), subsequent determination, 222 F.R.D. 280 (E.D. Va. 2004) (ordering discovery of attorneys' files about clients document retention program where evidence showed that prior to filing patent infringement lawsuit, client at attorneys' direction had conducted a "shred day"); In Re Prudential Insurance Companies of America Sales Practices Litigation, 169 F.R.D. 598, 615 (D.N.J. 1997) (adverse inference justified despite lack of evidence that employees intentionally destroyed relevant documents; company's "haphazard and uncoordinated approach to document retention" prejudiced opposing party); Reingold v. Wet n' Wild Nevada, Inc., 944 P.2d 800, 802 (Nevada 1997) (defendant sanctioned for spoliation; document destruction policy calling for destruction of documents shortly before statute of limitations expired unreasonable where claims were foreseeable);; Telectron, Inc. v. Overhead Door Corporation, 116 F.R.D. 107, 123 (S.D. Fl. 1987); Lewy v. Remington Arms Company, 836 F.2d 1104, 1112 (8th Cir. 1988) (directing district court to consider in evaluating whether spoliation instruction should be given, whether party's retention policy was reasonable in light of history of lawsuits filed or complaints made in the past; district court should consider whether frequency or magnitude of past complaints render policy on destruction of future documents unreasonable).

The law regarding what is sufficient notice to trigger the duty to preserve is constantly developing as parties become more and more aggressive about asserting claims of spoliation of evidence. Courts have recently considered whether the following events will trigger the duty:

A subjectively frivolous EEOC charge?

A subpoena for documents - does it trigger a duty to preserve other documents if the party may later become more generally involved in the litigation?

A lawsuit against by a competitor against another competitor for patent infringement?

A complaint from a customer that he was injured by a product?

The answer to questions like these will often depend on the company’s history of litigation. Has that kind of event, in the past, led to litigation? If so, the duty to preserve is more likely to have been triggered.

B. Selected Cases on the Ramifications of Spoliation of Electronic Information

In the last several years there have been many cases considering whether, and if so, what, penalties should be imposed for spoliation of electronic evidence. Below are synposes of just a few of these cases.

- Qualcomm Inc. v. Broadcom Corp., 2008 WL 66932 (S.D. Cal. Jan. 7, 2008).

In patent litigation, plaintiff intentionally failed to produce over 46,000 responsive emails and attempted to hide their failure to produce. Plaintiff used the absence of evidence that would have been established by missing emails in arguments to jury. Court imposed monetary sanctions of $8,568,633 against plaintiff, representing all of defendant’s litigation costs and fees. Based on finding that outside litigation counsel ignored warnings that plaintiff’s production of documents was incomplete, and assisted plaintiff by “reckless conduct,” court directed plaintiff’s counsel to participate in remedial education on preservation of evidence, among other things. Court also referred matter to California State Bar for investigation of attorneys for potential ethical breaches.

- United States v. Philip Morris USA Inc., 2005 LEXIS 13580 (D. D.C. July 21, 2004).

Government complaint alleged, among other things, that Philip Morris researched how to target-market its tobacco products to minors. Court entered order for the preservation of all documents and information potentially relevant to the case. Subsequently, Philip Morris deleted all e-mails more than 60 days old for a period of two years after entry of the preservation order. The government then moved for evidentiary and monetary sanctions. Court found that many e-mails were lost as the result of an automatic deletion process that was not modified to comply with its preservation order and that eleven of Philip Morris's highest ranking employees failed to follow the company's general document retention and preservation policy. Noting the complete destruction of the evidence, the court deemed itself unable to evaluate the harm to the government's case and imposed a $2.75 million monetary sanction against Philip Morris for its violation of the preservation order.

- Omega Patents, LLC v. Fortin Auto Radio, Inc., 2006 WL 2038534 (M.D. Fla. July 19, 2006).

Court imposed monetary sanctions against defendant under Rule 37(d) based upon defendant's delay in producing responsive e-mails notwithstanding defendant's assertion that it could not have produced them sooner without incurring "undue burden and expense."

- Coleman Holdings, Inc. v. Morgan Stanley & Company, Inc., No. CA03-5045AI, 2005 W.L. 674885 (Fl. Cir. Ct. March 23, 2005)

Uncoordinated search for back-up tapes led to late discovery of documents, partial default judgment and $1.5 billion damages verdict.

- In re Telxon Corp. Securities Litigation, 2004 WL 3192729 (N.D. Ohio 2004)

Sanction of default judgment against defendant warranted where defendant destroyed or failed to preserve electronically stored information, including metadata, in violation of order, where defendant was one of "big four" accounting firms experienced in litigation.

- Williams v. Sprint/United Management Co., 230 F.R.D. 640 (D. Kan. 2005)

No sanction warranted for destruction of metadata where production of metadata was new area of law and practice and preservation order had been ambiguous as to metadata.

- Krumwiede v. Brighton Associates, LLC, 2006 WL 1308629 (N.D. Ill. May 8, 2006).

Plaintiff sued former employer alleging various causes of action including breach of employment agreement and back wages. Former employer filed counterclaim for breach of non-compete agreement and misappropriation of business opportunities. Court found that plaintiff was responsible for willful, bad faith spoliation of evidence and other "hide the ball tactics" and entered summary judgment for former employer on counterclaims.

- In re Old Banc One Shareholders Securities Lit., 2005 WL 3372783 (N.D. Ill. Dec. 8, 2005).

Defendant in class action securities litigation was sanctioned for negligent failure to

institute and communicate a "litigation hold" or document preservation notice within the organization.

- Mosaid Technologies, Inc. v. Samsung Electronics Co., Ltd., 2004 U.S. Dist. LEXIS 23596 (D.N.J. July 7, 2004), affirmed, 2004 LEXIS 25286 (Dec. 7, 2004).

Plaintiff alleged patent infringement by defendant. Plaintiff sought e-mails based on

testimony of former Samsung designer regarding the extensive use of e-mail by Samsung technical personnel. Samsung did not institute a policy to preserve electronic information until well after suit was filed and therefore was unable to produce relevant electronic information, including e-mails, because they had been automatically purged from Samsung's computer system. Magistrate judge recommended an adverse jury instruction that the purged information would have been harmful to Samsung's defense, characterizing Samsung's conduct as "at the least, extremely reckless behavior." Magistrate's recommendation affirmed and upheld by District Judge.

- Phoenix Four, Inc. v. Strategic Resources Corp., 2006 WL 1409413 (S.D.N.Y. May 23, 2006).

Court cited proposed Fed. R. Civ. P. 26(a) and 26(b)(2) in determining that respondent

and its counsel failed to properly search all sources of potentially relevant documents when they did not search a hidden partition of a server hard drive.

- Tilberg v. Next Management Co., 2005 WL 2759860 (S.D.N.Y. October 24, 2005).

Court ordered plaintiff to share the cost of the forensic expert hired by defendant to search its e-mail servers for purposes of responding to plaintiff's discovery requests. Plaintiff subsequently asserted that expert was unable to access one server and found evidence indicating that additional responsive documents existed despite defendant's assertions to the contrary. Based on this evidence, court extended discovery deadline in plaintiff's favor.

The case law on the ramifications of spoliation of electronic evidence is constantly evolving. Practitioners should keep themselves abreast of this case law or become familiar with how the law of spoliation is evolving in the type of litigation that they practice by visiting one of the many online, searchable databases of e-discovery case law, such as K&L Gates’ case database, at https://extranet1.klgates.com/ediscovery/Search.aspx.

Attached to these materials is a very recent decision in a civil right matter in the Middle District of Florida that will be discussed during the presentation.

C. The Litigation Hold & How to Protect Yourself & Your Clients

1. Important Case Law on Litigation Holds & Electronic Evidence

The concept of a litigation hold is not new. However, with the advent of electronic discovery, spoliation of evidence -- and therefore the litigation hold -- has taken on a new prominence. This is because electronic information is more fragile, and more likely to be inadvertently destroyed, than paper documents. The sheer volume of electronic data created by any organization means that most organizations have to have a mechanism for automatically deleting or archiving the information. In addition, because electronic information can often be deleted by simply hitting a key, the risk of accident loss is increased.

The starting place for discussion of the case law on counsel’s duty with regard to litigation holds in the area of electronic discovery is the Zubulake series of decisions out of the Southern District of New York. Practitioners would do well to familiarize themselves with the facts and essential holdings of this series of decisions because they are frequently cited in both federal and non-federal cases.

The Zubulake series of decisions were issued in 2003-2004, in the context of a hotly contested employment discrimination case, by Judge Shira Scheindlin of the U.S. District Court for the Southern District of New York. The Zubulake court’s emphasis on the active involvement of counsel regarding the institution and monitoring of "litigation holds" foreshadowed and informed the 2006 revisions to the Federal Rules. The spoliation issues arose during a phase of the litigation discussed in the decision commonly referred to Zubulake IV.

During the course of the backup tape restoration project that was the subject of Zubulake III, the parties discovered that some of the backup tapes were missing. Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003) ("Zubulake IV "). In addition, certain isolated e-mails created after UBS supposedly began retaining all relevant e-mails were deleted from UBS's system (though they appeared to have been saved on the backup tapes) despite the following policies implemented by UBS:

- Shortly after Zubulake filed her EEOC charge, UBS issued an oral directive to its employees to retain all potentially relevant documents including e-mails and backup tapes.

- After Zubulake's counsel specifically requested e-mails stored on backup tapes, UBS's outside counsel orally instructed UBS's information technology personnel to discontinue their practice of recycling backup tapes.

The remedies sought by the plaintiff were: a) an order requiring UBS to bear the full cost of restoring the remaining backup tapes; b) an adverse inference jury instruction with respect to the content on the missing backup tapes; and c) an order directing UBS to bear the cost of re-deposing certain individuals concerning the issues raised in newly produced e-mails.

The court began by noting that the loss or destruction of documents that should have been preserved for purposes of threatened or pending litigation has the potential to cause significant prejudice to the adverse party. The specific questions presented were how to determine an appropriate penalty for the party that caused the loss and, conversely, how to determine an appropriate remedy for the party injured by the loss. The court recognized that this already difficult issue was further complicated in the case of electronic discovery, both because it is easier to delete or tamper with (both intentionally and inadvertently) and because it is difficult for litigants to craft and follow policies to ensure that all relevant electronic information is preserved. Thus, the opinion in Zubulake IV addressed both the scope of a litigant's duty to preserve electronic information and the consequences of a failure to preserve electronic information that falls within the scope of that duty.

With respect to the duty to preserve evidence, the court recited the existing general rule that a party’s obligation to preserve potentially responsive records (including electronic data) for purposes of litigation arises when the party has notice that the evidence is relevant to litigation or when the party should have known that the evidence may be relevant to future litigation. Id. at 216. Once the obligation to preserve is triggered, a party is not obligated to preserve every shred of paper or byte of electronic data in its organization. It must, however, preserve relevant evidence that might be useful to an adversary. This includes all information that it knows (or reasonably should know) is relevant to the action or potential action, that is reasonably calculated to lead to the discovery of admissible evidence, and that is reasonably likely to be requested during discovery and/or is the subject of a pending document request. The duty of preservation extends to all employees and agents who are likely to be in possession of information to which the duty applies, including "key players" and information technology staff. The duty extends not only to documents in existence at the time the duty attaches, but to all relevant documents created thereafter.

The Zubulake court stated that a party fulfills the duty to preserve through the prompt creation of and adherence to a discovery management plan that includes the immediate distribution of a "preservation directive" or "litigation hold" and the suspension (or partial suspension) of its routine document retention/destruction policy as it pertains to relevant documents or categories of documents.

The problem was that while UBS's counsel issued such a preservation directive on a timely basis, and adherence to the directive would have met UBS's preservation obligations, UBS's employees did not fully comply with the directive. Further, some of the "lost" tapes should still have been in existence pursuant to UBS's standard document retention/destruction policies without reference to the preservation directive.

The court then outlined the three elements an aggrieved party must establish as a prerequisite to an adverse inference instruction or other sanctions due to spoliation of evidence. These elements were drawn from case law in the Second Circuit, but these same factors are used in virtually all jurisdictions:

1) that the party having control over the evidence had an obligation to preserve it at the time that it was destroyed;

2) that the records were destroyed with a "culpable state of mind" (which includes ordinary negligence and does not necessarily require bad faith);3 and

3) that the destroyed evidence was "relevant," not just in the ordinary sense as tending to prove or disprove a material fact, but also meaning that a reasonable trier of fact could find that it would have been favorable to the party moving for sanctions as being supportive of one or more of its claims or defenses.4

The court found that UBS's duty to preserve had attached and that the loss/destruction of the information was negligent and possibly reckless (though not willful), but that Zubulake failed to prove that the information was likely to support her claims. As a result, the court refused to give an adverse inference instruction to the jury – noting that such an instruction is an extreme sanction that should not be imposed lightly since it tends to make it virtually impossible for the sanctioned party to ultimately prevail on the merits. The court did, however, require UBS to bear the plaintiff's costs for re-deposing certain witnesses for the limited purpose of inquiring into new issues raised by the destruction of evidence and any newly discovered e-mails.

Zubulake IV did not mark the end of issues relating to spoliation in the case. In Zubulake V (Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004)), after 2 years of discovery disputes and 4 prior written opinions, Zubulake again moved to sanction UBS for failure to produce/tardy production of relevant information. In deciding the sanctions issue, the court framed the questions to be decided as: 1) whether UBS failed to preserve and timely produce relevant information; and 2) if so, whether it acted negligently, recklessly or willfully.

In its opinion, the court wrote at length on the importance of lawyers and clients communicating clearly and effectively with each other throughout the litigation process and noted that when such communication breaks down, there are "usually casualties."

The court used its opinion as an opportunity to expound on: 1) counsel's obligation to ensure that all relevant discoverable information is preserved by giving clear instructions to the client to preserve such information; and 2) the client's obligation to heed those instructions. The court noted that, early in the litigation, UBS's inside and outside counsel directed it to retain relevant electronic information. Notwithstanding those instructions, UBS employees deleted relevant e-mails and other employees never produced relevant information to counsel. As a result, some e-mails responsive to discovery requests were deleted, and perhaps permanently lost, and others were produced approximately 2 years late. Counsel, in turn: 1) failed to request retained information from one key employee; 2) failed to provide "litigation hold" instructions to another key employee; 3) failed to communicate adequately with another employee about how she maintained her computer files; and 4) failed to safeguard backup tapes that might have contained some of the deleted e-mails, which would have mitigated the damage done by UBS's deletion of those e-mails. Based on these facts, the court found that sanctions were warranted.

After discussing the history of the discovery saga, the law of spoliation of evidence, the continuing obligation of clients and counsel to locate and preserve relevant information, and the failure of both UBS and its counsel to meet those obligations, the court concluded that the failures of both UBS and its counsel were willful and that the lost information would be presumed relevant. In determining what sanctions would be appropriate, the court considered the following goals: the punishment of UBS, the deterrence of future misconduct and the restoration of Zubulake to the position she would have been in had UBS faithfully discharged its discovery obligations. The sanctions assessed by the court included giving an adverse inference instruction to the jury with respect to the missing e-mails, assessing UBS with the cost of any depositions or re-depositions necessitated by the late production, requiring UBS to bear the cost of restoring and producing e-mails from various backup tapes as well as the cost of any depositions or re-depositions related to the information recovered from the backup tapes, and ordering UBS to pay all expenses and attorney's fees incurred by Zubulake in connection with her motion for sanctions.

2. Advising Your Client on Preservation of Evidence

Advising the client as soon as the duty to preserve has been triggered – and, indeed, making a specific inquiry into when the duty has been triggered – is an imperative. The client’s interests will be protected from a future spoliation claim, and the attorney will be protected from any allegation (by the court, the opponent, or the client) of failing to act quickly enough. As the cases above demonstrate, courts are increasingly willing to look at the actions of outside counsel as well as in-house lawyers and businesspeople when assessing whether sanctions should be levied after there has been spoliation.

The following is a general guide to protecting your client and yourself:

As soon as you are retained, ask yourself whether the duty to preserve has been triggered. Is litigation reasonably likely? Assess what has happened so far. Has there been an EEOC charge, a demand letter, a complaint from an injured customer, a claim notice from an insurance company? Any of these are likely to be sufficient notice of reasonably likely litigation. Write a memo to the file documenting your analysis.

If the duty to preserve has been triggered, check to see if the client has implemented any kind of litigation hold. If the answer is yes, ask for a copy, along with the distribution list and any documentation confirming receipt. Ask the client how they came up with the distribution list. Ask if IT has been advised of the hold and what IT has done. Advise the client that you now have a duty to be involved in monitoring compliance with the hold.

If the client hasn’t done anything yet, send the client a memo advising them of the need to issue a litigation hold and follow up with a discussion. Tell them that you need to be involved in creating the hold memo and determining the distribution list, and monitoring compliance.

Discuss with the client the likely custodians (individual and departmental) of relevant information. Learn about the client’s information management practices – both formal and informal. Who creates potentially relevant data? Where do they keep it? Who else has access to it? What retention periods or processes apply to the data? Create a distribution list. Make sure to include the IT personnel responsible for any janitorial/automatic functions applicable to storage media or applications.

Get the litigation hold out right away. Include enough specificity (time frames, topics, names of players in the dispute) that the people on the distribution list will be able to determine whether they have responsive information. Be over-inclusive. Require that recipients acknowledge that they have read and understand the directive. Ask for feedback, questions, or concerns.

If a data source is under individual control (e.g., data stored on a user’s desktop hard drive), assess whether it is reasonable to ask the individual user simply not to delete or alter the data, or whether the data needs to be copied off of the storage device in order to make sure that the data is preserved. Do not assume that document retention or storage policies are being followed.

D. What to Do If You Suspect Spoliation - Discoverability of Preservation and Production Information

If you suspect that spoliation has taken place, your first instinct may be to run to the judge. In some cases that may be the correct move. However, in most instances, you will need more specific information to back up your suspicions. That is where the concept of discovery-about-discovery comes in. Where the propounding party has a good-faith basis for seeking such discovery, and if the responding party has nothing to hide, counsel will generally be able to reach a compromise that allows some discovery to take place. However, so-called “meta-discovery” is sometimes used as a tactic, and can be rife with problems of privilege, expense and the specter of harassment. As a result, meta-discovery should be and can be resisted if the propounding party is unable to show a genuine need or basis for it.

1. Discoverability Generally

Meta-discovery will generally be allowed where the propounding party has an objective and good faith basis for believing that information has been wrongfully withheld or destroyed. See American Fast Freight, Inc. v. Nat'l Consol. & Distrib., Inc., 2007 WL 3357694 (W.D. Wash. Nov. 7, 2007) (compelling production of documents regarding data preservation where responding party failed to include electronic data in initial disclosures); see also McKenna v. Nestle Purina PetCare Co., 2007 WL 433291 (S.D. Ohio Feb. 5, 2007) (ordering defendant to answer questions in follow up discovery about discrepancy between its inability to retrieve emails requested in litigation and its ability to access such emails at time of plaintiff's termination).

Where the propounding party relies on mere suspicion that information has been withheld, however, meta-discovery will be denied. Kellogg v. Nike, Inc., 2007 WL 4570871 (D. Neb. Dec. 26, 2007) (plaintiff's counsel's "incredulity" at defendant's inability to produce certain documents was an insufficient basis to permit meta-discovery in light of defendant's explanations for scope of information provided).

Courts are particularly loath to allow discovery into one common target of meta-discovery: preservation instructions (aka litigation "holds") issued in connection with litigation. Such preservation instructions, if created after litigation began or was reasonably foreseeable, are generally protected by attorney-client privilege or the work product doctrine and shielded from discovery. See Gibson v. Ford Motor Co., 2007 WL 41954, *6 (N.D. Ga. Jan. 4, 2007) (noting that “[i]n the Court’s experience, these instructions are often, if not always, drafted by counsel, involve their work product, are often overly inclusive, and the documents they list do not necessarily bear a reasonable relationship to the issues in litigation.”); see also Muro v. Target Corp., 2007 WL 3254463 (N.D.Ill. Nov. 2, 2007) (denying request for production of litigation hold); E.E.O.C. v. Boeing Co., 2007 WL 1146446 (D.Ariz. April 18, 2007) (denying request for Rule 30(b)(6) deposition on document preservation because topic covered by work-product protection). However, even information that is arguably protected as work-product may become fair game for discovery if there are serious questions about spoliation of evidence. See Qualcomm, Inc. v. Broadcom Corp., 2008 WL 638108, *3 (S.D. Cal. March 5, 2008).

Courts have also denied meta-discovery where a party was able to show that the opponent may have destroyed documents in another case, but had no evidence of such tactics in the present case. See In re Honeywell Intern., Inc. Securities Litigation, 230 F.R.D. 293, 302 (S.D.N.Y. 2003) (denying discovery of a non-party’s specific document production efforts pursuant to a subpoena, as well as general document retention policies, despite evidence of document destruction by the defendant in an unrelated matter). The discovery sought also must be targeted to documents or ESI that are directly relevant to a party's claim or defense, as opposed to documents relevant to the general subject matter of the action. If the dispute concerns the production of documents that are only relevant to the general subject matter of the litigation, the request for additional discovery may be denied. See E.E.O.C. v. Boeing Co., 2007 WL 1146446, *2 (D. Ariz. April 18, 2007) (refusing to allow corporate deposition about efforts to locate certain requested documents where documents were only relevant to general subject matter, but not to EEOC's claims or Boeing's defenses); see Fed. R. Cir. P. 26(b)(1).

One effective way to thwart a motion to compel meta-discovery is to provide the court with detailed information in the form of affidavits to rebut the moving party's factual contentions supporting the request for additional discovery. This is particularly the case where discovery is sought regarding the producing party's contention that ESI is not "reasonable accessible" and thus not subject to discovery under Rule 26(b)(2)(C). For example, in E.E.O.C. v. Boeing Co., 2007 WL 1146446, *3 (D. Ariz. April 18, 2007), Boeing was able to defeat a motion to compel a Rule 30(b)(6) deponent to answer questions about the company's estimated cost to produce certain types of email. The court held that Boeing had already provided sufficient information to the court in the form of affidavits on that topic, in response to the EEOC's motion to compel the email itself. Id.; see Petcou v. C.H. Robinson Worldwide, 2008 WL 542684, *1 (N.D.Ga. Feb. 25, 2008) (magistrate had denied motion to compel production of emails alleged to be not "reasonable accessible" with leave to move for reconsideration after taking discovery on accessibility issue; motion for reconsideration subsequently denied); cf. Wells v. Xpedx, 2007 WL 1200955 (M.D. Fla. April 23, 2007) (opposing party's failure to provide the court with detailed information about its data preservation policies and practices, efforts to search for and retrieve responsive information, and computer system capabilities led to court permitting Rule 30(b)(6) deposition of IT personnel).

2. Remedies

If meta-discovery is being used as a tactic the propounding party will usually seek a great deal of access and information in an effort to drive up costs. Courts, having grown wise to such tactics, frequently limit the scope of the remedy and in some cases have fashioned their own remedies to fit the facts of the case. The remedies available once meta-discovery has been deemed appropriate generally range from the mild, see ATM Exchange, Inc. v. Visa Int'l Serv. Ass'n, 2007 WL 1674230 (S.D. Ohio June 7, 2007) (ordering defendant to provide new verified discovery responses addressing alleged failure to produce responsive documents and lack of document retention policy); Google Inc. v. Am. Blind & Wallpaper Factory, Inc., 2006 WL 3290402 (N.D. Cal. Nov. 13, 2006) (ordering party to verify that it had made good faith effort to produce all responsive information); In re Kmart, 371 B.R. 823 (Bankr. N.D. Ill. 2007) (ordering party to re-do search for documents), to slightly intrusive, see Treppel v. Biovail Corp., 2008 WL 866594 (S.D.N.Y. Apr. 2, 2008) (permitting forensic examination of producing party's laptop to look for allegedly missing documents), to comprehensive, see Vennet v. Am. Intercont'l Univ. Online, 2007 WL 4442321 (N.D. Ill. Dec. 13, 2007) (ordering defendant to permit plaintiff's expert to examine phone system and network, and permitting Rule 30(b)(6) deposition of defendants' records custodian and IT personnel); Wells v. Xpedx, 2007 WL 1200955 (M.D. Fla. April 23, 2007) (permitting deposition of IT personnel on computer system capabilities).

II. DISCOVERY FROM DATA SOURCES DEEMED “NOT REASONABLY ACCESSIBLE”1

Under Federal Rule of Civil Procedure 26(b)(2)(B) a party may resist production of ESI from sources that are “not reasonably accessible due to undue burden or cost.” Although these is no corollary in the Oregon state court rules, hopefully Oregon courts will look to the federal rules and caselaw for guidance on this issue.

The Federal Rules of Civil Procedure provide an outline for how to proceed when faced with a Rule 26(b)(2)(B) objection. The rule states that “A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.” The rule establishes a procedure for resolving disputes over the claim:

On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for discovery.

This “two-step” process has been criticized by some as duplicative and meaningless. Nevertheless, it does provide a rules-based approach to challenging the claim. The rule invites a motion to compel to test the claim.

With a motion to compel in mind, your first step should be to insist that your opponent fully comply with the “identification” requirement of the rule. The Advisory Committee notes to the rule make it clear that a responding party invoking Rule 26(b)(2)(B) must:

identify, by category or type, the sources containing potentially responsive information that it is neither searching nor producing. The identification should, to the extent possible, provide enough detail to enable the requesting party to evaluate the burdens and costs of providing the discovery and the likelihood of finding responsive information on the identified sources.

If you anticipated that this issue might arise, you may have included an instruction in your request for production demanding that the responding party provide those details in its response. Under the rule, these questions need not be asked in the form of interrogatories because the notes make it reasonably clear that the responding party has the obligation to provide this information at the same time that it responds to the underlying discovery request. Assuming

1 This section is drawn from my article “Probing Claims That Data Is Not Reasonably Accessible,” PP&D, Vol. 17, No. 1 (2008) the newsletter of The Committee on Pretrial Practice & Discovery of the American Bar Association, Section of Litigation, and is excerpted here with permission of the American Bar Association. The full version of the article with additional citations and notations is available at http://www.abanet.org/litigation/committees/pretrial/home.html.

that you did not receive that information in the discovery response, you should write to your opponent, referencing the notes and asking that additional detail be provided.

It is important to keep in mind that Rule 26(b)(2)(B) is properly used as an objection to production of information, not to discoverability of information. Therefore, you should make it clear to your opponent that you understand its response to indicate that the sources to which it is referring may contain responsive information that otherwise would be discoverable under Rule 26(b)(1); that is, it has conceded that the source may contain information that is “relevant to any party’s claim of defense” and that is itself admissible or “reasonably calculated to lead to the discovery of admissible evidence.”

But what will you do with the detailed information about the source once you have it? If your opponent takes its obligations seriously, it will give you technical information about the sources it considers not reasonably accessible. At the same time that you are preparing your letter demanding a more complete identification of the sources that your opponent has refused to search, you should be preparing yourself to understand and evaluate its anticipated response. If you have not already done so in connection with a Rule 26(f) conference, you should give serious consideration to retaining an electronic discovery consultant to explore the other party’s contentions.

Hopefully, the letter to your opponent garners a response that gives you information sufficient to either accept or reject the claim that certain information is “not reasonably accessible.” But let’s suppose, as is unfortunately likely, that you encounter resistance. Rather than engage in a lengthy back-and-forth by letter, consider doing some formal discovery to support your probable motion to compel.

Although courts usually dislike litigants engaging in discovery away from the central issue in the case, in this situation, the Advisory Committee notes to the rule will support issuing discovery on e-discovery. The notes state, in the context of a discussion about the two-step, burden-shifting analysis set out in the rule, that:

. . . the court and parties may know little about what information the sources identified as not reasonably accessible might contain, whether it is relevant, and how valuable it may be to the litigation. In such cases, the parties may need some focused discovery, including sampling of the sources, to learn more about what burdens and costs are involved in accessing the information, what the information consists of, and how valuable it is for the litigation in light of information that can be obtained by exhausting other opportunities for discovery.8

Not only do the notes to the rule specifically contemplate discovery about discovery (what some call “meta-discovery”) but several courts have also ordered such discovery when the parties could not agree. For example, in Petcou v. C.H. Robinson Worldwide, the court denied a motion to compel production of email that was alleged to be “not reasonably accessible,” but ordered discovery on the accessibility issue, and allowed the requesting party leave to refile the motion. In Wells v. Xpedx, the court permitted the requesting party to take a corporate representative deposition under Federal Rule of Civil Procedure 30(b)(6), regarding the producing party’s data-preservation policies and practices, its efforts to search for and retrieve

responsive information, and its computer system capabilities, because the producing party failed to provide the court with sufficient information to back up its claim that data was not reasonably accessible.10

Let me digress a bit to consider what kind of information you should expect from your opponent concerning its data sources. A common question from clients is what data sources may be deemed “off limits” under Rule 26(b)(2)(B). The answer to that question, like most such questions posed to lawyers, is “it depends.” No data sources are necessarily and presumptively “not reasonably accessible,” because the focus of the rule is on the burden or cost of production from that source, not on the particular source itself. The burden or cost to the producing party may arise because of multiple factors. The cost/burden factors that have been recognized by the Rules Committee, commentators, or courts, include:

• “forensic costs” of converting data from a format that is difficult or impossible to search or review to another more accessible format (such as the restoration of data from a backup tape)11

• the cost to review the data for responsiveness, privilege, or other concerns12

• business disruption and “internal” costs

While much has been written about the different categories of data source media formats—for example, “active” or “online,” “nearline,” “backup,” “deleted,” or “legacy”—it is clear that under the appropriate circumstances, a party may need to produce information from a source that appears to be “not reasonably accessible.” Indeed, focusing on the format of any particular source can lead to a good amount of confusion of the issues. For example, in W.E. Aubuchon v. Benefirst, the court began with what it called a “media-based analytical approach” to the issue of whether medical claim files were protected by Rule 26(b)(2)(B).15 The court repeated Judge Scheindlin’s explanation of the different categories of sources in the Zubulake cases, which she had designated as either “accessible” or “inaccessible.” The Aubuchon court ran into a problem applying that analysis to the facts before it and to Rule 26(b)(2)(B) (which was enacted after the Zubulake cases). The Aubuchon court concluded that the data source at issue—a server—was “accessible” under the Zubulake analysis; however, the court also held that the data on the server was not searchable or indexed in any meaningful way. Therefore, the court concluded that despite the media source being “accessible,” the ESI was “not reasonably accessible” under the rule because of the time that would be required to review the data for responsiveness.

Such confusion can be avoided by focusing on the burden associated with complying with the particular discovery request, rather than the type of media on which it is stored, and by viewing the media format as but one of several considerations. Therefore, do not be content with an explanation from your opponent that no documents were produced in response to your request, reasoning that if responsive documents exist, they are on a backup tape, which is not reasonably accessible. By letting you know the media type, your opponent has only begun to answer the hard questions that you should pose to probe its claim.

Whether your opponent plays hardball and requires you to take discovery on the point, or

agrees to provide information to back up its claim voluntarily, probing a claim that data is “not reasonably accessible” requires asking difficult questions about technical details, vendor relationships, and litigation planning.

As noted above, simply because the data source is a media format that the conventional wisdom would call “inaccessible” does not necessarily mean that discovery from the source would be unreasonably burdensome or costly. Once you learn the media type or format, you should ask additional questions to inform your analysis.

To take one common example, opposing counsel may claim that the email files of a former employee might contain responsive information, but that when the employee left, his or her email account was closed and the data deleted from the email server. The only place that the employee’s email might reside is on one of several backup tapes of the email server created shortly before the account was closed. Your opponent may argue that the former employee’s email files are therefore “not reasonably accessible” because restoring and locating that data on the backup tapes would be burdensome and costly.

You should recognize that this contention rests on a premise about what backup tapes are used for, which is, generally speaking, recovery of data after a catastrophic loss, such as a natural disaster. But what if the opposing party uses backup tapes for purposes other than disaster recovery? What if your opponent’s system is set up in such a way that when an email file goes missing, the company routinely uses the backup tape to restore the data? If that is the case, then your opponent will have a much more difficult time convincing a court that the data source is not reasonably accessible, because the company’s actual business practices make that data source seem a lot more like “nearline” storage (CD-ROMs, external hard drives) than anything else. Why would it be unreasonable for your opponent to restore email data from a backup tape in response to your targeted discovery request if it regularly does the same thing for its own business purposes?

To find out how your opponent treats backup tapes or similar media, serve discovery requests asking for data from its help desk application system (a report, most likely) showing the dates and details of requests for data restoration. The IT help desk at most large companies will track requests for help, IT’s investigation, and the eventual solution. Alternatively, you should notice a corporate representative deposition under Rule 30(b)(6) and ask for information about requests for data restoration from users. If the corporate representative tells you that individual users frequently asked IT for help restoring data that had been accidentally deleted and that IT usually loaded data from backup tapes, that information may be significant in undermining your opponent’s claim that its backup tapes are not reasonably accessible.

You should also be savvy about the attributes of backup tapes. If your opponent claims that it will have to search thousands of tapes to locate the email file of one employee, ask how it reached that conclusion. Even backup tapes that are not externally labeled or indexed may include headers that can be read using a simple scan that would show the backup date and backup software (which could indicate whether the tape contains email or some other data type). Other simple scans may show server-level information. You should ask your opponent what kinds of analysis it has done of the backup tapes to support its contention about the cost and burden of finding the requested data.

You also should discuss the use of sampling, a compromise that was specifically endorsed in the Federal Rules of Civil Procedure revisions in 2006. The Advisory Committee notes to Rule 26(b)(2)(B) suggest that discovery on the issue of accessibility “might take the form of requiring the responding party to conduct a sampling of information contained on the sources identified as not reasonably accessible . . .” Sampling may involve restoring a few backup tapes selected from different time periods or locations both to determine whether any responsive or truly useful information is likely to be contained on the tapes, and to inform future discussions about cost and burden.

Simply because the data that you seek now resides on a media type that your opponent claims is “not reasonably accessible” does not mean that it has always been so. One line of attack in probing a claim under Rule 26(b)(2)(B) involves finding out when the ESI involved was exiled to its current home (on, say, a backup tape).

All parties have an obligation to preserve data that they reasonably believe is likely to be relevant to pending or anticipated litigation. Although Federal Rule of Civil Procedure 37(e) (formerly (f)) provides a “safe harbor” for destruction of data that occurs pursuant to the “routine, good faith operation of an electronic information system,” the Advisory Committee notes explain that the protections of Rule 37(e) do not mean that a party under a preservation obligation regarding that data may allow an auto-delete system to continue to run unchecked. A party may not allow a routine system operation to destroy all access to a set of data if it is under a duty to preserve that information.

A more complicated situation arises when the data in question was not deleted, but simply moved (or, in IT parlance, “migrated”) from an easily accessible storage media to a less-accessible media, after the preservation obligation arose. For example, what if immediately after a complaint is filed in court, one of the defendant’s employees, who was at the center of the dispute, leaves the company, and his or her email records are removed from the company’s “active” email server? After discovering that the employee’s email is no longer on the server, the company preserves a backup tape made of the email server immediately before the employee left the company. In that case, there probably was no “spoliation,” as the employee’s email still exists. But suppose that the company refuses to produce the email on the basis that it is “not reasonably accessible.”

In factually analogous situations, courts have held that although “downgrading” of data from active to archival or disaster-recovery storage media is not spoliation, the producing party will be unable to shift any of the cost of restoring the archival media so that it can be searched and the data retrieved.21 Therefore, it makes sense to ask questions about where the data that your opponent says is “not reasonably accessible” resided in the recent past, when that data migrated to the less-accessible media, and whether it did so as the result of a routine operation, or as the result of a conscious and specific decision. Although it is unlikely that the answers to questions on this topic will result in data being deemed “reasonably accessible,” it may assist you in arguing that production should be ordered nonetheless under Rule 26(b)(2)(B)’s “good cause” standard and that the producing party should bear the cost.

In the Aubuchon case, the data being sought—static digital images of claim files—were deemed “not reasonably accessible” because those files were not indexed in such a way that

responsive documents could be identified without the producing party having to manually review each document on the server. The responding party successfully argued that the cost of review for responsiveness was an undue burden. Similarly, in other cases, requests for ESI have been rejected or severely limited by the court where the cost of review for responsiveness (or privilege, or some other concern) was high.

While the cost of reviewing volumes of ESI for privilege or responsiveness is repeatedly cited as one of the worst—if not the worst—side effects of the increasing prominence of electronic discovery, there is no need to blindly accept your opponent’s claims about the cost of performing that review. Instead, take the following steps to explore those claims.

First, discuss with your opponent how it determined the universe of documents that require individual review. Perhaps you have already discussed the use of search terms to allow identification of responsive documents from data sources that the producing party has conceded are reasonably accessible. That is the same kind of conversation you should have about sources that purportedly are not reasonably accessible. Do not allow your opponent to argue that you were unwilling to discuss narrowing the range of data using search terms or concepts, requiring the manual review of every document. The defendants in Petcou v. C.H. Robinson Worldwide, Inc. were able to use that argument to block discovery of company email with “pornographic” or “sexual” content. The email was contained on backup tapes that had to be restored and then reviewed. The Petcou plaintiff would not narrow the scope of the requested data beyond the very broad, and vague, language of the request for production. Because the request would have required defendants to review every email to or from thousands of employees over a six-year time period, and make subjective judgments about what was “pornographic,” on top of incurring the cost of restoring the backup tapes, the court found that the plaintiff could not establish good cause to order the production. Simply talking to your opponent about narrowing search terms or concepts to minimize the burden of a request may help to foreclose a contention that the cost of review renders a source not reasonably accessible.

Second, you also should ask your opponent to give you details about the individual components of its cost estimate and look for line items that simply do not make sense. Is the other party proposing that a team of associates, each billing $300 per hour, perform the review? Has it considered outsourcing review to one of the many companies that will provide contract attorneys to perform review (at a third the cost of big-firm associates) or off-shoring the review at an even lower cost? Is it paying for online hosted review, or is it proposing to use an in-house review tool? What is its vendor proposing to charge for processing, hosting, or production? Is it planning on creating TIFF files of all of the documents prior to review or only those that are selected for production?

The reasonableness of your opponent’s projected cost will depend on the sensitivity of the review, the size of the job, and the resources available to your opponent, all of which the other party should be prepared to share with you and your experts. If your opponent does not share that information with you, it likely will have to share the information with the court.26 If you can use that information to generate cost estimates or bids from your own vendors that are dramatically lower, it may be possible to remove the cost of review as a factor in the accessibility analysis.

Probing a claim that data is “not reasonably accessible” under Rule 26(b)(2)(B) involves, first, understanding that the rule and the Advisory Committee notes provide a mechanism for resolving such disputes that contemplates discovery on the issue, and, second, asking hard questions of your opponent about the basis for its claim. One overriding trend in court decisions on accessibility issues is to demand that parties disclose to each other, and thoroughly discuss with each other, the details involved in the dispute before they come to court. Those details may be confusing and require the assistance of consultants. However, attorneys owe it to their clients and the courts to diligently pursue negotiated resolution of accessibility issues so that the information that is necessary to resolve each case on its merits can come to light, without unnecessary cost or delay. An added benefit to full disclosure is that if a motion to compel is necessary, an exchange of ESI details will give the parties and the court the information necessary to reach the right decision.

III. METADATA

The new Oregon state court rules provide that the requesting party may designate the form of production. This mimics the federal rules, where there has been extensive litigation over the issue of form of production.

Tied in with the form of production is the issue of metadata. Metadata is the “background” information to any piece of electronic document. Metadata takes several forms. Metadata is fragile and easily altered by mistake. But it can be critical in understanding a document. Many parties resist the production of metadata on the basis that it is unnecessary and not relevant in most cases.

Blanket objections to production of metadata on the basis that it is not relevant miss the point. Metadata allows ESI to be searched, sorted, and categorized. If the metadata is stripped out of ESI when it is produced to the requesting party, the documents are degraded significantly. The producing party retains the ability to sort and search the ESI, for example by creation date, author, edit date, custodian, etc., while the requesting party is left to run (at most) manual searches across the entire data population for dates, names, etc. The result is a significant disparity in the accessibility and utility of the ESI between the producing and requesting parties. Federal Rule of Civil Procedure 34 is specifically intended to eliminate this kind of disparity. As one court recently put it “The advisory committee notes for the 2006 amendments to Rule 34 provide guidance that Defendants' option to produce in a reasonably usable form does not mean that they are free to convert electronically stored information from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for Plaintiff to use the information efficiently in the litigation.” White v. Graceland College, 586 F. Supp. 2d 1250, 1264 (D. Kan. 2008).

Recognizing the importance of metadata to the usability of produced ESI, the leading think-tank on ESI issues, The Sedona Conference Working Group 1, revised its Principle 12 to provide as follows:

Absent party agreement or court order specifying the form or forms of production, production should be made in the form or forms in which the information is ordinarily maintained or in a reasonably usable form,

taking into account the need to produce reasonably accessible metadata that will enable the receiving party to have the same ability to access, search, and display the information as the producing party where appropriate or necessary in light of the nature of the information and the needs of the case.

The Sedona Principles-Second Edition: Best Practices Recommendations and Principles for Addressing Electronic Document Production Principle 12 (Sedona Conference Working Group Series 2007), http:// www. thesedona conference. org/ content/ misc Files/ TSC_ PRINCP_ 2nd _ ed_ 607. pdf (“Sedona Principles 2d” ). The Sedona Principles 2d, and in particular Principle 12 and its comments have been relied on by many courts on the issue of production of metadata. See, e.g., Aguilar v. Immigration & Customs Enforcement Div., 255 F.R.D. 350, 355-57 (S.D. N.Y. 2008). We have no doubt that Judge Stewart would follow suit.

As observed by Judge Maas in Aguilar, courts have “generally ordered the production of metadata when it is sought in the initial document request and the producing party has not yet produced the documents in any form.” Aguilar, 255 F.RD. at 357 (collecting cases). Indeed, Invacare’s position mirrors one of the cases discussed in Aguilar. In Hagenbuch v. v. 3B6 Sistemi Elettronici Industriali S.R.L., 2006 WL 665005 (N.D. Ill. Mar. 8, 2006), a case decided before the 2006 revisions to Rule 34, the defendant, over the plaintiff’s protest, converted all ESI to TIFF images without metadata as part of its production. Id. at *3. The plaintiff moved to compel production in native format. Id. The court sided with plaintiff, noting that the metadata “will allow [plaintiff] to piece together the chronology of events and figure out, among other things, who received what information and when.” Id., at *3.

The relevance or admissibility of metadata is really not the issue when a party requests production of metadata, as the commentary in the Sedona Principles 2d makes clear. The metadata is part of the evidence in the producing party’s possession, as it is kept in the ordinary course of business; it is therefore erroneous to conduct a separate “admissibility” inquiry for a document’s metadata. If the document itself is discoverable, the document must be treated as a whole, metadata included. The issue then becomes whether the producing party may produce only part of the document, degrading its characteristics. Clearly, the rules do not permit the producing party to degrade data in this manner.

Some may propose that running optical character recognition on images is an adequate solution to make electronic documents searchable by the requesting party. OCR is not a substitute for extracted metadata. First, OCR is not 100% accurate. Second, while OCR allows a search of a document, it only allows a search of what the OCR program “sees” in the TIFF image. If any particular piece of information is not reproduced in the TIFF image then an OCR search will not pick it up. Third, different pieces of data will reproduce differently in the TIFF imaging process, meaning that a search using a standard format may not “hit” on all responsive information. Finally, and most importantly, OCR does not allow documents to be sorted and organized by the requesting party according to metadata characteristics, while of course the producing party retains that ability because it has access to the data in native format.

The recent case of In re Netbank Inc. Securities Litigation, No. 1:07-CV-2298-BBM, 2009 WL 2461036, *22 (N. D. Ga. Aug. 7, 2009), demonstrates the point. In Netbank the plaintiff demanded production in native format in order to be able to “1) determine the identity of the author and editors of the documents; (2) determine the creation and modification dates of the documents; (3) determine whether the documents have attachments; and (4) identify, sort, search or filter documents.” Id. The defendant insisted that TIFF production with the ability to OCR the TIFFs would satisfy the plaintiff’s concerns. Id. The court rejected defendant’s position, and ordered production in native format, principally on the basis that the defendant had only offered “hypothetical problems” with native production. Id. Although the court did not discuss the inadequacy of OCR specifically, implicitly the court rejected the defendant’s contention that OCR of TIFF was an adequate solution.

So, if you have the capability of using metadata to search and review ESI, ask for it. Most commonly, metadata is requested to be included in the “load file” produced by the other side. Negotiations sometimes occur over which metadata fields should be included – each type of software generates different metadata. Make sure that you insist on getting the metadata fields that are going to be most useful to your document review.

IV. PROPORTIONALITY

The Sedona Conference Working Group 1 has recently published a very influential policy guidance work called the Sedona Conference Commentary on Proportionality in Electronic Discovery. The paper was intended to address a very common complaint about electronic discovery, which is that it is vastly too expensive particularly in the context of average-size and smaller cases, such as those that make up the bulk of the civil docket in Oregon state courts.

In order to provide guidance to courts and litigants about what limits should be placed on

electronic discovery, the Working Group developed the following principles. The Sedona Conference® Principles of Proportionality 1. 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. 2. Discovery should generally be obtained from the most convenient, least burdensome, and least expensive sources. 3. Undue burden, expense, or delay resulting from a party’s action or inaction should be weighed against that party. 4. Extrinsic information and sampling may assist in the analysis of whether requested discovery is sufficiently important to warrant the potential burden or expense of its production. 5. Nonmonetary factors should be considered when evaluating the burdens and benefits of discovery. 6. Technologies to reduce cost and burden should be considered in the proportionality analysis.