THE PROPORTIONALITY TEST: RESOLVING E-DISCOVERY DISPUTES IN EMPLOYMENT LITIGATION

2010 Midwinter Meeting of the American Bar Association Employment Rights and Responsibilities Committee March 24, 2010

Sean R. Gallagher Hogan & Hartson LLP 1200 Seventeenth Street, Suite 1500 Denver, Colorado 80202 Telephone: (303) 454-2415 Facsimile: (303) 899-3333 www.hhlaw.com [email protected]

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Lauren E. Schwartzreich Outten & Golden LLP 3 Park Avenue 29th Floor New York, New York 10016 Telephone: (212) 245-1000 Facsimile: (212) 977-4005 www.outtengolden.com [email protected]

 INTRODUCTION In the last decade, with the growing amount of information stored in electronic form, employment law litigators increasingly find themselves caught in discovery disputes over production of electronically stored information (“ESI”).1 Such information may be critical an employee’s claim of unpaid wages (e.g., payroll data), discrimination (e.g., a supervisor’s typed memorandum to a manager containing discriminatory comments about the plaintiff), or retaliation (e.g., a manager’s email sent to plaintiff’s supervisor 10 minutes after plaintiff complained of unlawful conduct), to name a few examples. These electronic discovery (“e-discovery”) disputes often focus on plaintiff employees’ efforts to obtain ESI from their employer defendants who typically have most, if not all of the relevant ESI. Employers in turn seek protection from the courts because they believe production of the ESI would impose an undue burden or cost. Courts have authority to limit e-discovery. The 2006 amendments to Rule 26(b) of the Federal Rules of Civil Procedure (the “Rules” or “Federal Rules”) were “designed to address issues raised by difficulties in locating, retrieving and providing discovery of some electronically stored information.” Fed. R. Civ. P. 26(b) advisory committee’s notes on 2006 amendments. Under Rule 26(b)(2), if a party from whom ESI is requested considers the ESI request unduly burdensome, then that party can file a motion for a protective order or the requesting party can file a motion to compel. The court then determines whether the ESI is “not reasonably accessible due to undue burden or cost.” Fed. R. Civ. P. 26(b)(2)(B).2 If so, the court then decides whether the requested ESI is duplicative, available elsewhere or could have been sought by the requesting party earlier in the litigation. Fed. R. Civ. P. 26(b)(2)(C)(i) and (ii). If the responding party establishes that the ESI not reasonably accessible, the court may still order discovery3 where the requesting party shows “good cause.” Fed. R. Civ. P. 26(b)(2)(B). Even so, the court must still consider whether the discovery request’s “burden or expense …  1 ESI includes, but is not limited to, Digital communications (e.g., e-mail, text messages, voice mail, instant messages, Tweets);Word processed documents (e.g., Word or WordPerfect documents and drafts); Presentations (e.g., PowerPoint, Corel Presentations); Spreadsheets and tables (e.g., Excel or Lotus 123 worksheets); Accounting Application Data (e.g., QuickBooks, Money, Peachtree data files); Image and Facsimile Files (e.g., .PDF, .TIFF, .JPG, .GIF images); Sound Recordings (e.g., .WAV and .MP3 files); Video and Animation (e.g., .AVI and .MOV files); Databases (e.g., Access, Oracle, SQL Server data, SAP); Contact and Relationship Management Data (e.g., Outlook, ACT!); Calendar and Diary Application Data (e.g., Outlook PST, Yahoo, blog tools); Online Access Data (e.g., Temporary Internet Files, History, Cookies); Network Access and Server Activity Logs; Project Management Application Data; Computer Aided Design/Drawing Files; and, Back Up and Archival Files (e.g., Zip, .GHO). 2 A producing party cannot simply allege that ESI is not reasonably accessible, the party must establish that ESI is not reasonably accessible. See Starbucks Corp. v. ADT Security Services, Inc., No. 08 Civ. 900, 2009 U.S. Dist. LEXIS 120941, at *10-11 (W.D. Wash. Apr. 30, 2009) (producing party failed to establish that requested ESI was “not reasonably accessible,” as evidenced by party’s exaggeration of costs). 3 The Rule permits a court to “specify conditions for the discovery.” Id. ̳̳̳ǦͲ͹͵Ͳ͵ͶȀͲͲͲͶͲͲǦͶͶ͸ͷͺͶ˜ͳ



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 outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.” Fed. R. Civ. P. 26(b)(2)(C) (iii). This weighing of burden and benefits under Rule 26(b)(2)(C)(iii), is often referred to as a “proportionality” analysis. E.g., John B. v. Goetz, No. 3:98-0168, 2010 U.S. Dist. LEXIS 8821, at *204 (M.D. Tenn. Jan. 28, 2010) ((factors similar to Rule 26(b)(2)(C) found in Zubulake I “were [previously] referred to as the ‘proportionality’ test.”) citing Zubulake v. UBS Warburg, 217 F.R.D. 309, 316 (S.D.N.Y. 2003) (“Zubulake I”); Oracle Corp. v. SAP AG, No. C-07-01658, 2008 U.S. Dist. LEXIS 88319, at *3 (N.D. Cal. July 3, 2008) (defining issue as “one of proportionality under Federal Rule of Civil Procedure 26(b)(2)(C)(iii).”). See also The Sedona Conference, The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Production (June 2007) (advocating proportionality principles for e-discovery in state and federal court litigation).4 Some courts have adopted proportionality considerations within their rules. See e.g., Seventh Circuit Electronic Discovery Pilot Program, Proposed Standing Order Relating to the Discovery of Electronically Stored Information, § 1.03 (2009) (“The proportionality standard set forth in Fed. R. Civ. P. 26(b)(2)(C) should be applied in each case when formulating a discovery plan. To further the application of the proportionality standard in discovery, requests for production should be reasonably targeted, clear and as specific as practical.”)(available at http://www.ilcd. uscourts.gov/Statement%20%20Phase%20One.pdf (last visited Feb. 18, 2010)); Joint Bar-Court Comm., Suggested Protocol For Discovery of Electronically Stored Information ¶ 8 I, K (2007) (working model of ediscovery for the District of Maryland requires that Rule 26(f) conference discussions include “[s]pecific facts related to the costs and burdens of preservation and retrieval and use of ESI . . . . and the amount of pre-production review that is reasonable for the Producing Party to undertake in light of . . . Fed. R. Civ. P. 26(b)(2)(C).”) (Available at http://www.mdd.uscourts.gov/news /news/ESIProtocol.pdf (last visited Feb. 18, 2010)). A recent decision out of a district court in Tennessee, provides a detailed application of Rule 26(b)(2)(C)(iii)’s proportionality test. In the Goetz case, plaintiffs, a group of children, brought a class action lawsuit against the state of Tennessee alleging deprivation of care in violation of federal law. John B. v. Goetz, No. 3:98-0168, 2010 U.S. Dist. LEXIS 8821 (M.D. Tenn. Jan. 28, 2010). The plaintiffs sought to compel production of various types of ESI that the defendants claimed would cost $10 million to produce. The court applied the proportionality test of Rule 26(b)(2)(C)(iii) and found that the factors weighed in favor of ordering the ESI production. The court determined the following for each proportionality factor:

 4 “When balancing the cost, burden, and need for electronically stored information, courts and parties should apply the proportionality standard embodied in Fed. R. Civ. P. 26(b)(2)(C) and its state equivalents, which require consideration of the technological feasibility and realistic costs of preserving, retrieving, reviewing, and producing electronically stored information, as well as the nature of the litigation and the amount in controversy.” Id. (available at http://74.125.93.132/search?q=cache:ocPeaNMLxGwJ:www.thesedonaconference.org/ content/miscFiles/TSC_PRINCP_2nd_ed_607.pdf+sedona+conference+proportionality&cd=2& hl=en&ct=clnk&gl=us&client=safari) (last visited Feb. 20, 2010).) ̳̳̳ǦͲ͹͵Ͳ͵ͶȀͲͲͲͶͲͲǦͶͶ͸ͷͺͶ˜ͳ



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The Needs of the Case - The court found that the needs of the case weighed in the plaintiffs’ favor because defendants possessed virtually all of the critical information needed by plaintiffs to prosecute their claims. Id. at *263.

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The Amount in Controversy - The court found that the amount in controversy was relatively unknown due to the fact that the violations continued to accrue throughout the litigation. Id at *264.

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The Parties’ Resources - The court considered the parties’ resources and found that they were grossly disproportionate because the class consisted of impoverished children whose counsel was a non-profit organization that relied on pro bono services of large firms and experts, whereas defendants had access to federal funds as well as the state attorney general’s staff. Id. at *265

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Importance of the Issues at Stake - The court found that the case presented “issues of utmost importance” and noted that “‘if a case has the potential for broad public impact, then public policy weighs heavily in favor of permitting extensive discovery.” Id. at *265 n41 (quoting Zubulake I, at 321) (emphasis in original).

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The Importance of the ESI in Resolving the Issues - The court found that “serious issue[s]” had been presented where, among other things, the health of needy children was at stake. Id. at *268.

The Goetz decision is particularly instructive here, where employment cases may invoke public policy considerations. This paper addresses two topics related to proportionality tests in employment cases: (A) how counsel for each side will likely argue proportionality; and (B) suggestions for reducing the burdens and costs of ESI production. A. Arguing Proportionality in Employment Cases 1.

Employers Focus on the Amount in Controversy

Employers are likely to argue for a proportionality test that emphasizes weighing ESI production costs against the “amount in controversy.” Employers may prefer this argument because there is a strong likelihood that this factor would weigh in the employer’s favor. Employers may easily win a proportionality test framed this way because employers often bear significant ESI production costs and employees usually recover only limited damages in the majority of employment cases. Employers often face significant e-discovery costs in employment litigation. This is hardly surprising given that employers possess most relevant ESI in employment cases. Unfortunately, these costs may increase where employers fail to share information about their internal ESI system structures. This failure invites broad litigation holds and ESI production demands by employees. As a result, employers may increase their costs, thus slanting the proportionality scale in their favor.

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 Employers also benefit from the “amount in controversy” factor because employment cases often provide limited financial recovery for employees. For example, an employer will win an “amount in controversy” analysis in an action involving a low-wage worker who seeks unpaid minimum wage payments for a limited recovery period under the applicable statute of limitations. Similarly, employers will likely win in matters involving employment discrimination claims, which are capped at $300,000 for compensatory and punitive damages. See 42 U.S.C. § 1981a (b)(3). Employers may fare even better under this analysis where a court agrees to consider statistical evidence of monetary awards obtained in similar employment cases and pools the employee’s claims with those in the statistical sample, particularly where the average recovery amount is significantly less than the actual amount sought by the employee.5 Thus, employers will likely push for proportionality tests emphasizing the “amount in controversy.” 2.

Employees Downplay the Amount in Controversy Factor

Employees are likely to argue that the “amount in controversy” factor should be of limited use, as a matter of public policy in employment cases. The 1983 amendments to the Federal Rules, the precursor to proportionality,6 support the public policy argument. The Advisory Committee Notes to the 1983 amendments to the Federal Rules state: “the rule [26(b)] recognizes that many cases in the public policy spheres, such as employment practices, free speech, and other matters, may have importance beyond the monetary amount involved.” Fed. R. Civ. P. 26(b) advisory committee’s notes on 1983 amendments (emphasis added). Employees can effectively argue that employment claims invoke public policy considerations particularly where the claims involve statutory remedial rights. See e.g., The Lily Ledbetter Fair Pay Act of 2009, 42 USCS § 2000e-5 (superseding Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), because it “significantly impair[ed] statutory protections against discrimination in compensation that Congress established and that have been bedrock principles of American law for decades”); Hoffman-La Roche v. Sperling, 493 U. S. 165, 173 (1989)(explaining that the Fair Labor Standards Act serves broad, remedial goals); Forester v. Chertoff, 500 F.3d 920, 929 (9th Cir. 2007) (“[T]he ADEA is remedial and humanitarian legislation and should be liberally interpreted to effectuate the congressional purpose of ending age discrimination in employment”); Hart v. J. T. Baker Chemical Co., 598 F.2d 829, 831 (3d Cir. 1979) (“[B]road remedial legislation such as Title VII is entitled to the benefit of liberal  5 Reliance on statistical evidence of awards in other cases are likely to devalue the “amount in controversy” for employment discrimination claims, particularly in light of studies reflecting that employees generally recover $100,000 less than the $300,000 cap. See JVD Releases Its New Study of Employment Practice Liability Trends and Statistics for 2007, Emp. Prac. Liability Verdicts and Settlements, Nov. 2007, LRP Pub. at 2 (based on nationwide research of discrimination cases between 2000 and 2006, the median jury verdict was $200,000). 6 Rule 26(b)(1) was amended in 1983, granting courts authority to limit redundant or duplicative discovery and identifying factors for courts to consider in making a decision to limit such discovery. Factors to be considered for limiting discovery under Rule 26(b)(1)(iii) were: the nature and complexity of the action; the importance of the issues at stake; the parties’ resources and the significance of the substantive issues. Fed. R. Civ. P. 26(b) advisory committee’s notes on 1983 amendments. ̳̳̳ǦͲ͹͵Ͳ͵ͶȀͲͲͲͶͲͲǦͶͶ͸ͷͺͶ˜ͳ



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 construction.”); Adams v. Union Dime Sav. Bank (2d Cir. 1944) 144 F2d 290, 292, cert denied, (1944) 323 US 751 (“[R]eformation of a contract which in terms violates a remedial statute would tend to frustrate the administration of the [Fair Labor Standards] Act and contravene its policy.”). Employees bringing claims under these statutes are in strong position to argue that the statutes’ remedial rights may be subverted by the “amount in controversy” factor of the proportionality test. Depending on the individual circumstances of the case, employees may argue for emphasis of any of the other proportionality factors, though employees are likely to stress the public policy considerations raised here. B. Suggestions for Reducing the Burdens and Costs of ESI Production Counsel on both sides of the bar have a strong incentive to cooperate in discovery and anticipate a proportionality assessment by the court. Failure to cooperate before bringing disputes to the court may lead to harsh consequences for either side: employers risk astronomical e-discovery costs and employees risk losing access to critical evidence. Because employers can anticipate significant e-discovery costs in employment cases, employers should make every effort to reduce those costs. Similarly, because employees’ claims may rest on access to employers’ ESI, employees should also make every effort to keep their requests reasonable and to work with employers to reduce their e-discovery burdens and costs. One of the most effective cost-reduction strategies is early and meaningful cooperation with opposing counsel regarding ESI preservation and production. Courts also have a strong incentive to encourage early cooperation in e-discovery. As courts are increasingly required to resolve e-discovery disputes, 7 many of which could have been avoided by cooperation between the parties, courts can reduce waste of judicial resources by taking an active role in e-discovery cooperation. Cf. Fed. R. Civ. P. 26(b) advisory committee’s notes on 1983 amendments (“The rule contemplates greater judicial involvement in the discovery process and thus acknowledges the reality that it cannot always operate on a self-regulating basis.”) Further, by addressing e-discovery disputes early on, courts may prevent unnecessary motion practice and delays to litigation dockets. The following strategies highlight ways in which courts and counsel for employees and employers can reduce e-discovery costs and affirmatively incorporate aspects of proportionality to protect the rights of both sides.8  7 See, e.g., Kipperman v. Onex Corp., 260 F.R.D. 682, 700 (N.D. Ga. 2009) (in “a textbook case of discovery abuse,” the court sanctioned defendants who, “rather than seeking a protective order[,] determined themselves that it would be overly burdensome” to produce the requested ESI in the court-ordered format); Aguilar v. Immigration and Customs Enforcement Div., 255 F.R.D. 350, 364 (S.D.N.Y. 2008) (“[T]hese proceedings have now been bogged down in expensive and time-consuming litigation of electronic discovery issues only tangentially related to the underlying merits of the Plaintiff’s . . . claims.”). 8 The following proposals are adapted from an unpublished thought piece on proportionality: Richard Hood, Gilbert Keteltas & Sean R. Gallagher, The Sedona Conference, Advocating Proportionality in the Discovery Process (May 14-15, 2009) (unpublished working paper, on file with authors). ̳̳̳ǦͲ͹͵Ͳ͵ͶȀͲͲͲͶͲͲǦͶͶ͸ͷͺͶ˜ͳ



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 1.

Early Cooperation and Transparent Discussions of Proportionality

Courts and parties can proactively pursue proportionality early in the litigation process by communicating openly and effectively about their ESI. In the early stages of litigation, parties should consider bringing ESI experts to their Rule 26(f) meet and confer, quickly identify what relevant ESI exists and soon after share the results of that assessment with opposing counsel and the court. During discovery, parties should consider reducing costs by investigating technology tools that can avoid expenditure of greater costs in the long run. i. Using ESI Experts at Rule 26(f) Conference Parties may consider retaining an expert to provide technical support before and during the meet and confer conference required by Rule 26(f) (the “Rule 26(f) meet and confer”). Consulting with an expert and even bringing an expert to the Rule 26(f) meet and confer could protect a party from making inaccurate statements regarding ESI or costs associated with its production. A law firm’s or a corporate client’s technology personnel may not be appropriate consultants for this conference, as their in-house skills may not translate into the expertise required for litigation. If one party plans to bring an expert to the Rule 26(f) meet and confer, that party should consider requesting that all other parties do the same. ii. Rule 16 Conferences and Exchanges of Data Maps Courts can use the Rule 16 pretrial conference (the “Rule 16 conference”) to encourage early proportionality self-assessment.9 As part of the Rule 16 Conference the parties can exchange “data maps.” A “data map” is an overview of an organization’s (or person’s) ESI environment. A data map should identify the structure of where an organization’s ESI can be found. For example, a data map would outline how many back up tapes exist for the relevant time periods and custodians; what data can be found on live servers; how many hard drives with relevant data exist; and where relevant voicemails are stored and the format in which they are maintained. By exchanging data maps, parties are forced to actively self-assess ESI accessibility. Parties are in a better position to determine the accessibility of ESI because they have identified the following information: (1) what ESI exists; (2) where the ESI is located; (3) what ESI may be relevant; (4) whether the party is complying with its preservation obligations; and (5) the monetary costs and time burdens associated with accessing, reviewing, and/or producing such ESI. Data mapping potentially provides an added benefit to parties as they are in a better position to refine their litigation strategies. Parties can refine their litigation strategies by (1) calculating their own internal litigation budget; (2) assessing the strengths and weaknesses of  9 Rule 16 conferences serve the following purposes: “(1) expediting disposition of the action; (2) establishing early and continuing control so that the case will not be protracted because of lack of management; (3) discouraging wasteful pretrial activities; (4) improving the quality of the trial through more thorough preparation; and (5) facilitating settlement.” See Fed. R. Civ. P. 16(a). ̳̳̳ǦͲ͹͵Ͳ͵ͶȀͲͲͲͶͲͲǦͶͶ͸ͷͺͶ˜ͳ



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 their own ESI; (3) making informed decisions about what ESI is reasonably accessible; and (4) identifying ESI productions that may ultimately be contested. The parties’ data maps will also enable courts to anticipate and diffuse potential discovery disputes. iii. Using Technology to Reduce Costs Technology can often reduce discovery costs where used wisely. For example, new technologies can reduce costs of attorney ESI review. Document management tools enable counsel to review, categorize, search, and sort ESI quickly and efficiently. As a result, even though document management tools may be costly, they can significantly reduce attorney and paralegal review time and consequently reduce the party’s overall costs. Parties, whether collectively or independently, may want to obtain detailed proposals and cost estimates from several e-discovery vendors and then determine an appropriate approach to collective or independent ESI review. 2.

Using Traditional Discovery Devices to Identify and Value ESI

Parties and courts may use traditional discovery tools to encourage cooperation and proportionality self-assessments. Some examples are: (1) taking Rule 30(b)(6) depositions regarding ESI identification; (2) propounding interrogatories tailored to identifying ESI; and (3) using special masters to handle complex e-discovery disputes. i. 30(b)(6) Depositions Regarding ESI Identification Parties should consider taking depositions of knowledgeable witness who can identify the content, format and location of relevant ESI.10 Where there is a corporate party that maintains ESI, the other party may want to notice a Rule 30(b)(6) deposition in advance of propounding discovery requests. Through these Rule 30(b)(6) depositions, parties can obtain helpful information about the other party’s ESI, and thereafter tailor their discovery requests accordingly. Potential areas for discovery in an early 30(b)(6) deposition might include: x x x

The identity of all employees responsible for managing and maintaining a party’s technology infrastructure; The identity of all non-employee consultants, consulting firms, contractors responsible for installing, servicing, managing, or maintaining a party’s technology infrastructure; A detailed topography of the party’s technology infrastructure and computer systems;

 10 Given the multiplicity of ESI that could be scattered between file servers, backup tapes, company and employee-owned computers, portable storage media, blackberries, cell phones, etc., parties may not be in a position to meaningfully assess their own or needed ESI at the early Rule 16 conference stage. ̳̳̳ǦͲ͹͵Ͳ͵ͶȀͲͲͲͶͲͲǦͶͶ͸ͷͺͶ˜ͳ



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 x x x x x

Information about employee use of personal computers and other devices for work purposes; A description of the party’s policies and procedures for records management; A description of the party’s policies and procedures for data backup and disaster recovery; A description of the party’s policies and procedures for reformatting or reprovisioning of computer hard drives; and/or A description of any litigation hold imposed by the party. ii. Interrogatories Regarding ESI Preservation and Location

An available but less frequently used alternative to a Rule 30(b)(6) ESI deposition regarding e-discovery are interrogatories pursuant to Rule 31. Interrogatories may be especially useful in e-discovery where a party wants binding detailed answers but does not want to expend financial resources taking a formal Rule 30(b)(6) deposition. Courts can encourage the use of ediscovery interrogatories by granting parties leave to propound interrogatories in excess of the number allowed under the Rules. See Fed. R. Civ. P. 26(b) advisory committee’s notes on 1993 amendments (“The revisions in Rule 26(b)(2) are intended to . . . authorize courts . . . to increase or decrease by local rule the presumptive number of depositions and interrogatories allowed in particular types or classifications of cases.”). Expanded e-discovery interrogatories may save the parties significant resources and enable them to narrowly tailor their ESI production requests. iii. Involvement of Special Masters In especially complex cases, the parties or the court might consider appointment of a special master to assist with assessing competing discovery needs and formulating a workable and proportional e-discovery plan. Special masters may be expensive, however, and absent extraordinarily complicated technical issues, magistrate judges may be in as good of a position, if not better, to resolve e-discovery disputes. 3.

Staging Discovery to Postpone Production of Not Reasonably Accessible ESI

Parties and courts may want to consider staged discovery in an effort to postpone and/or prevent production of not reasonably accessible ESI. As part of staged discovery, the parties first address discovery of accessible ESI and postpone discovery of not reasonably accessible ESI. By prioritizing the less expensive methods of ESI production, the parties may be in a better position to assess their respective positions for both proportionality considerations as well as for settlement discussions. i. Post Summary Judgment Discovery Courts may want to consider postponing discovery of “not reasonably accessible” ESI until after summary judgment. Instead of courts deciding “how much to limit costly discovery[,]” courts can instead decide “when in litigation to allow costly discovery[.]” Scott A. Moss, Litigation Discovery Cannot be Optimal but Could be Better: The Economics of Improving Discovery Timing in a Digital Age (May 24, 2009) (hereafter “Litigation Discovery”)

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 (emphasis added).11 Although post-summary judgment discovery may seem counterintuitive, because summary judgment generally comes after all discovery has been completed, courts are not required to have discovery precede summary judgment.12 Post-summary judgment discovery could alleviate ESI burdens and costs by increasing the likelihood that “costly discovery is imposed only in cases with a greater probability of merit.” Id. Extending discovery past summary judgment addresses at least one critique of the Federal Rules’ proportionality test, i.e., that proportionality asks judges to “decide when discovery cost is proportional to some measure of ‘value’ that includes both evidence value to jury deliberation and case value to the parties and society . . . [but that in practice,] discovery disputes occur before parties marshal all the evidence . . . .” (Id.) (Emphasis in original). In employment cases, where employers have access to virtually all of the relevant ESI, employees are hardly in a position to effectively advocate the “importance of the discovery in resolving the issues” before they have seen all the available evidence. Fed. R. Civ. P. 26(b)(2)(C)(iii). Consequently, judges are similarly not in a position to reasonably determine the importance of the requested discovery at early stages in employment litigation. Therefore, courts are in a better position to conduct a proportionality analysis late in discovery, if not after summary judgment. CONCLUSION While proportionality is hardly a panacea for burdensome and costly discovery, it is one of many available tools for resolving and reducing e-discovery disputes. Parties should not wait to see whether the court will apply the proportionality test in a way that is more likely to lean in favor of one side or another. Courts are growing tired of these disputes, particularly where it is evident that counsel failed to reasonably cooperate. Perhaps as a consequence of the proliferation in e-discovery disputes, courts are increasingly adopting a hands-off approach until the parties demonstrate that they have cooperated in good faith. By using the various tools identified in this paper, parties should be in a better position to avoid unproductive and potentially embarrassing e-discovery related encounters with the court and instead litigate their cases on the merits, as efficiently and cost-effectively as possible.

 11 http://legalworkshop.org/2009/05/24/litigation-discovery-cannot-be-optimal-but-couldbe-better-the-economics-of-improving-discovery-timing-in-a-digital-age (last visited, Feb. 18, 2010). This Editorial is based on the following full-length Article: Scott A. Moss, Litigation Discovery Cannot be Optimal but Could be Better, 58 DUKE L.J. 889 (2009). 12 Courts have broad case management authority. See Fed. R. Civ. P. 16(c)(2)(F) (broad authority over timing of discovery); Fed. R. Civ. P. 16(c)(2)(E) (timing of summary judgment motions); Fed. R. Civ. P. 16 advisory committee’s notes on 1970 amendments (broad authority over sequencing of discovery). ̳̳̳ǦͲ͹͵Ͳ͵ͶȀͲͲͲͶͲͲǦͶͶ͸ͷͺͶ˜ͳ



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