Last week, the Working Group 7 of The Sedona Conference – "Sedona Canada" – issued a public comment draft of "The Sedona Canada Commentary on Proportionality in Electronic Disclosure & Discovery."
As explained by Justice Colin Campbell in his Foreword, proportionality is not a new concept in civil procedure, but has become a critical practical imperative and conceptual ideal given the impact of electronically stored information on litigation. He says, "Civil litigation simply becomes cost-prohibitive and burdensome without early and careful attention to identifying key sources of potentially relevant data and ensuring that only potentially relevant and unique data is preserved, collected and reviewed for production." Justice Campbell's message is echoed in the body of the commentary itself, which directs a shift in focus from relevance to practical necessity:
Parties should recognize that civil rule changes emphasizing proportionality are in response to a need for a change in legal culture given the exponential growth of information. It is simply cost-prohibitive, and in many cases impossible, to undercover and produce every potentially relevant document.
Parties and their counsel should accept a change in focus from all potentially relevant information to that which is truly necessary to the resolution of the conflict.
According to Sedona Canada, proportionality requires that "[a] measure should not exceed what is reasonably necessary to achieve an objective and [should] exclude excessive burdens, costs, and delay that would contribute little to achieving the objective." It also says, "the simplest, smallest, and least intrusive steps should be taken first, with escalation as more action is recognized as needed to meet the objective."
With our Canadian penchant for balancing, proportionality is not a difficult concept to understand. It is nonetheless a great challenge for judges and legal counsel. Part of the challenge, as Justice Campbell explains, is cultural, and due to the belief that "zealous advocacy" requires the pursuit of all information related to a matter. The other challenge is technical, and relates to the application of proportionality to the e-discovery process itself.
The commentary addresses both these challenges. Backed by Justice Campbell's endorsement, the commentary argues that the achievement of zealous advocacy is consistent with the aims of proportionality. And on the technical challenge, the commentary articulates ten "principles on proportionality." Through each principle, Sedona Canada applies the proportionality concept to an aspect of the e-discovery challenge. The articulation of principle is supported by case law citations and will be of practical assistance to judges and counsel.
The commentary is available here, free of charge. You do have to enter an e-mail address to download, but don't let that discourage you. The commentary is a must read.
Proportionality is a polite smoke-screen for valid concerns over practitioner (in)competence.
Many of us with expertise in an area of law that is in play in an action have had cases where we've had to do reams of work, for a motion, or a discovery that wouldn't be necessary if the other side had similar expertise. One just can't go into court telling the judge or master – that's bullsh*t – one has to find the cases, extract relevant passages, etc. We can't leave it to the judge or master to have to find the material himself or herself, and we certainly can't assume the judge or master already knows the law.
Then, when it comes to costs, the amount of time one has put in is thrown in one's face as justification for the amount of time the other side put in.
Recall that proportionality comes out of the US where the usual costs rule is that both sides bear most of their own legal expense. It's not the case that the winning side is presumptively entitled to costs. In the vernacular, there's usually no or very limited fee-shifting.
If the judges and the profession really want proportionality, we'll go the US route.
Don't hold your breath.
By the way, will "proportionality" be a valid defence to the e&o claim againt me when my failure turn over that last rock, because of "proportionality" means I didn't get to the "Pinto smoking gun" memo?
Thank you for your comments David. They are sure to invite valuable debate.
You relate competence to proportionality. In part you suggest that competent litigators take thoughtful positions that don't waste resources. I agree with that. Assuming a tactic or task is valid though, there is still always a question of marginal utility.
Of all the things we do in advancing a case, the marginal utility question is most relevant to discovery because discovery based on a semblance of relevance or even a relevance standard leads to absurd consequences today. This phenomenon exists because of the way information is stored and is a reality with which the most competent litigators among us must reckon. You shouldn't miss the "smoking gun" if you guide your client (competently) through a proportional search and retrieval process or if you push your opponent to the same. If you do, in my view you'll be blameless.
Dan
Proportionality is an attempt to control the use of litigation as economic terrorism. Unfortuntately,by itself, it's too little and too late.
You want to control that problem. You start punishing the litigators. lawyers. The law societies can't do that. They're not going to get involved in deciding what's right or wrong in an ongoing action.
I suspect you know how litigators are disciplined in the US Federal and State courts. By discipline committees composed of judges of the court.
David
One more point Dan, since unlike you I doubt that either the topic (or my responses) will result in any amount of discussion here.
Proportionality may limit what the requesting party can demand, at any particular time, but, until we change the basic rules that govern the responsibility of lawyers and litigants, there can be any sort of proportionality limit on what the responding party has to do to comply with its obligation to produce relevant material. (The rub is in the definition of relevant, right?)
Apart from that? Senior (enough) Ontario litigators will know the back-story to the production / affidavit of documents order/ruling in Grossman v Toronto General Hospital.
David
Correction – that should have bee "can't be any sort of proportionality limit"
The Sedona Canada Commentary on Proportionality in Electronic Disclosure & Discovery is also available on the Canadian eDiscovery Working Group portal hosted by LexUM at http://www.lexum.ca/e-discovery/
This is the "public comment version", and WG7 would like to receive feedback from litigators, specifically: is the advice offered practical, fair and balanced? Does it give them a framework for finding proportionate approaches to discovery problems? Do they understand what information is expected from them in justifying decisions made during preservation and production? Does it work for standard as well as mega cases?
There is a comment form on The Sedona Conference® website, and comments may also be sent directly to rgb@sedonaconference.org.