November 12, 2012 Articles

Undue Burden, Proportionality, and Cost-Shifting in E-Discovery

Attorneys must understand and be prepared to use the rules of civil procedure as they relate to electronic information.

By Margaret Rowell Good

The technological revolution of the past several decades has exposed lawyers to new and unexpected challenges during the discovery process. Ralph C. Losey, “Lawyers Behaving Badly: Understanding Unprofessional Conduct in E-Discovery,” 60 Mercer L. Rev. 983, 1005 (2008). The “high volume, broad dispersal, and dynamic nature” of electronically stored information (ESI) can frustrate effective and economically viable discovery. Dan H. Willoughby Jr., Rose Hunter Jones & Gregory R. Antine, “Sanctions for E-Discovery Violations: By the Numbers,” 60 Duke L.J. 789, 791 (2010). E-discovery’s overwhelming nature may be the reason parties discuss the discovery of ESI in less than 30 percent of all federal cases and in less than 2 percent of all state cases. Jason R. Baron & Ralph C. Losey, E-Discovery: Did You Know?, YouTube (Feb. 11, 2010).

The complexity of e-discovery affects all lawyers, no matter what size the firm, how complex the litigation, or what the client’s resources. As an introduction to e-discovery for newer lawyers or more seasoned lawyers who are first faced with the complexities of e-discovery, this article focuses on how to (1) apply the undue burden and proportionality analysis to navigate e-discovery, (2) avoid the ethical pitfalls associated with e-discovery, and (3) use cooperation as a strategic tool during discovery.

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