Proportionality Just Across the Pond – UK, U.S. and Canada

September 30, 2013 Guest Blogger

The high cost of e-discovery production continues to be a factor in the justice equation when parties grapple with whether to settle or enter into litigation. Based on a case-study method to understand the cost of e-discovery production across a diverse set of cases with typical e-discovery requests, authors of the RAND Institute’s “Where the Money Goes” found that total e-discovery expenditures had a median value of $1.8 million.

Couple that with high dollar ESI cases such as Tampa Bay Water v. HDR Engineering, Inc., where the judge found $3.1 million in e-discovery fees to be reasonable, and it begs the question – how much discovery is enough?  What is reasonable?

The answer is based on the “proportionality” principle, but as litigation and investigations trend towards more international breadth, it’s interesting to see the difference in the state of the law on this matter in similar jurisdictions just across the pond. Below are key points from a recent article I wrote for the British Columbia Paralegal Association comparing the way e-discovery is assessed between UK, U.S. and Canadian laws.

UK – Explicitly Addresses E-Discovery Technology in Practice Direction 31B

  • In the UK Jackson reforms, effective April 1, 2013, the purpose of the e-disclosure amendments contained in Practice Direction 31B is to “encourage and assist the parties to reach agreement in relation to the disclosure of Electronic Documents in a proportionate and cost-effective manner.”
  • Practice Direction 31B states that “technology should be used in order to ensure that document management activities are undertaken efficiently and effectively.” Parties are obligated to discuss the “tools and techniques (if any) which should be considered to reduce the burden and cost of electronic documents” … including “agreed software tools.”
  • Judges now have the express power to require parties to set and exchange budgets for the entire case at the outset of a matter, including forecasts for disclosure costs. Throughout the matter, the judge will monitor the parties’ expenditures to make sure that the case – and disclosure – remain proportionate.
  • Judges in the UK have recognized the use of advanced technologies such as Technology-Assisted Review (TAR). In Goodale v. The Ministry of Justice, Senior Master Whitaker acknowledged his awareness of “software that will effectively score each document as to its likely relevance and which will enable a prioritization of categories within the entire document set.”

U.S. – FRCP Not Explicit on Technology, But Strong Line of Recent Cases

  • The 2006 Amendments to the FRCP referred to proportionality in limiting discovery where “not reasonably accessible because of the costs and burdens of retrieving it.” The Proposed revision to Rule 26(b)(1) would explicitly limit the scope of discovery so it is “proportional to the needs of the case.”
  • FRCP does not, however, specifically address technology like the UK’s Practice Direction does.
  • Instead, the U.S. Case law shows a turn to technology as a way to control costs. In the Da Silva Moore case, Judge Peck sites “the need for cost-effectiveness and proportionality under Rule 26(b)(2)(c)” when he approved the use of predictive coding technology or TAR.  Since then, judges in at least six other cases (Kleen Products v. Packaging Corporation of America; Global Aerospace v. Landow Aviation; In re: Actos Product Liability Litigation; EOHRB v. HOA Holdings: Gabriel Technologies v. Qualcomm; In Re Biomet) have shown judicial acceptance or at least awareness of technology as a way to keep costs in check.

Canada = Not Explicitly Addressed by Rules or Courts, Sedona Principles Guide

  • Though there is a clear undercurrent in the rules governing civil litigation in Canada where there is a stronger emphasis on the affirmative obligation to disclose relevant information, Canadian rules and case law do not yet address e-discovery cost control and the use of technology.
  • The Sedona Canada Commentary on Proportionality in Electronic Disclosure and Discovery published in October 2010 encourages parties to consider “[t]he value of technological tools and approaches to reduce the volume of irrelevant and/or duplicative information” in weighing the burden and cost.

Charles Lavallée is a director at Lateral Data, a Conduent company. He can be reached at info@conduent.com.

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