E-Discovery Word of the Year: “Proportionality”

“Selfie” may be the word of the year with a reported 17,000% increase in usage in 2013, according to the publishers of the Oxford English Dictionary, but we suspect that if there were a word of the year for the e-discovery community, it would be “proportionality.”

Pilot programs, judges, procedural rules in federal and some state courts, and organizations including The Sedona Conference have called for proportionality in e-discovery for years. Finally, in 2013, we have proposed amendments to the federal rules that explicitly address the concept, and now we have judicial opinions insisting that courts enforce reasonable limits on discovery. Earlier this year, the Colorado Supreme Court ruled that Rule 26 of the Colorado Rules of Civil Procedure, which is similar to its federal counterpart, requires “active judicial management to control excessive discovery.” In re DCP Midstream, LLP v. Anadarko Petroleum Corp., 393 P.3d 1187 (Colo. 2013).

The case arose from a breach of contract case between oil and gas companies. During discovery, plaintiff DCP Midstream issued 58 requests for the production of millions of pages of documents. The trial court had ordered defendant Anadarko Petroleum Corporation to comply, claiming it was powerless to make the parties cooperate and narrow the discovery requests: it ruled that the plaintiff was entitled to “discovery on any issue that is or may become relevant.”

The Colorado Supreme Court disagreed, finding the trial court had abused its discretion in failing to take a more active role in managing discovery. The court had not made “findings about the appropriate scope of discovery in light of the reasonable needs of the case and made no attempt to tailor discovery to those needs.” In doing so, the court should have considered “the cost-benefit and proportionality factors set forth in C.R.C.P. 26(b)(2)(F).”

The decision makes clear that trial courts should actively control e-discovery according to the principle of proportionality, a doctrine that expects parties to cooperate and agree upon reasonable efforts, appropriate limitations, and defined parameters to identify, preserve, and produce relevant information. Although the procedural rules of most state and federal courts contemplate some limits on discovery, courts have often stopped short of enforcing those limits. Now, with increased focus on proportionality thanks to the proposed federal rule amendments, expect more courts to take a more aggressive role in limiting the scope of discovery at an early stage of the case.

Bill Mariano is vice president at Conduent. He can be reached at billmariano@conduent.com.

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