The purpose of discovery generally is to facilitate efficient and just dispute resolution. Balanced against that goal is concern for undue burden, delay and expense. Given these conflicting interests, courts generally do not require “perfect” efforts to preserve, collect and produce electronically stored information. Rather, the electronic data discovery process must only be “reasonable” under the circumstances.
Yet, absent express agreement of the parties, or specific court order, disputes about the adequacy of EDD efforts almost inevitably arise. Courts have not articulated objective benchmarks of reasonableness in EDD, and the very process of demonstrating (or challenging) the adequacy of EDD efforts itself imposes burden, delay and expense. On a big-picture basis, the concept of “proportionality” may mean not only the reasonableness of the e-discovery process, but also the reasonableness—under the circumstances—of efforts to demonstrate the adequacy of the process. The inclusion of tests of cooperation may make review of EDD efforts easier for courts to conduct.
