With 2018 coming to a close, it is a great time to look back on the year’s most influential eDiscovery cases.   This four-part series will cover the biggest themes found in case law, starting with scope and proportionality.

Proportionality serves as an important tool for controlling eDiscovery processes and associated costs. Many cases in 2018 reflected the importance of tailoring discovery request to the claims and defenses in the case. Given the vast and seemingly endless amount of electronically stored information (ESI) available, parties must show there is a specific, and reasonable need for it. When a request is too broad or overreaching, the courts will deem it disproportionate to the needs of the case. 

In Firefighters’ Retirement v. Citgo, No. 13-373-SDD-EWD, 2018 WL 276941 (M.D. La. Jan. 3, 2018), plaintiffs filed a motion to compel without clearly substantiating what information was missing or why more discovery was needed. The court saw that the defendant had already taken substantial steps in discovery efforts, shown good faith, and were being reasonable in their position. Therefore, they said, “,"[T]here is no obligation on the part of a responding party to examine every scrap of paper in its potentially voluminous files" and "[i]n an era where vast amounts of electronic information is available for review, ... [c]ourts cannot and do not expect that any party can meet a standard of perfection."

Similarly, Nece v. Quicken Loans, No. 16-2605 (M.D. Fl. Feb. 27, 2018), demonstrates that litigants should be cognizant of the risks of overstating their case. Requests for “any and all” documents are not well received by federal courts and may result in sanctions. The plaintiff sought to extend discovery and time to move for class certification. Although the statute contained a four-year limitation, the plaintiff refused to limit her requests. The defendant objected, saying the plaintiff’s requests were extremely broad, rather than a “reasonable sample.” The courts found that the plaintiff failed to acknowledge that she was unlikely to obtain class certification in this case and individualized issues were likely to predominate, so her case would proceed as an individual claim only. 

Forman v. Henkin, 30 N.Y.3d  656 (2018), also proved the importance of tying discovery requests to a specific claim or defense. The defendant sought access to the plaintiff’s Facebook account, which she refused to provide. The defendant moved to compel, arguing that the social media material was relevant to the scope of the case and the plaintiff’s credibility. The court rejected the notion that the plaintiff’s ‘‘privacy’’ settings govern the scope of disclosure of social media materials and found that the defendant met the threshold for burden of showing that the plaintiff’s Facebook account was reasonably likely to yield relevant evidence. 

Specificity is critical when making and opposing proportionality arguments. Unsupported claims that production will be burdensome or duplicative will not be successful and risks credibility. In Physicians Alliance v. Wellcare, No. 16-203-SDD-RLB (M.D. La. Feb. 27, 2018), after more than a year of making representations to the court about the cost of restoring backup tapes as requested by the plaintiff, the defendant revealed that certain backup tapes had always been unavailable. Although the defendant argued that the information on the backup tapes was likely to be cumulative of prior productions, at oral argument, its counsel represented that only 71 percent of the data recovered had been duplicative of other information produced.

Stay tuned for the next topic – preservation, spoliation and sanctions.