Thus one must adopt a “horses for courses” approach. The extent of discovery will differ
from case to case and the themes of
are essential in the approach to ESI cases and disputes. As was said in
Rimkus Consulting Group, Inc. v. Cammarata
“*T+he reasonableness of discovery burdens in a $550 million case arising out of the
liquidation of hedge funds, as in
, will be different than the reasonableness of discovery burdens in a suit to enforce noncompetition
agreements and related issues, as in the present case.”
emphasised reasonableness and proportionality noting:
“*w+hether preservation or discovery conduct is acceptable in a case depends on
what is reasonable, and that in turn depends on whether what was done
or not done
was proportional to that case and consistent with clearly established
This approach was considered “too amorphous” in
Orbit One Communications, Inc. v. Numerex
Corp. which s
uggested that that, “until a more precise definition is created by
rule, a party is well-
advised to ”retain all relevant documents (but not multiple identical copies) in existence at the time the duty to preserve attaches.” However, as new rule
systems develop, reasonableness and proportionality are being emphasised, especially in England and New Zealand. In the pursuit of reasonableness and proportionality courts have to be prepared be a)
robust and b)
set limits to the reasonable search for documents. This may include limiting search terms or methods used. What must be recognised is that, as an aspect of the digital paradigm arising from the properties of digital technologies, it is no longer possible to follow every line of enquiry. It may well be that the
“smoking gun “ will
be undiscovered. But limitations are necessary to achieve justice at an effort and cost that is reasonable and proportionate to the case.
The Obligations of the Parties
Part of the new discovery mindset requires a different approach from the lawyers. This brings into the focus the theme of
collaboration and co-operation
in the discovery process. The objectives of reasonableness and proportionality will be achieved if there is discussion
688 F. Supp. 2d 598, 613 n.9 (S.D. Tex. 2010).
Ibid. p. 613.
2010 WL 4615547 (S.D.N.Y. Oct. 26, 2010.