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.