The obligation to preserve potentially relevant documents when litigation is reasonably anticipated is well-settled and, through case law over the past few years, well-known. However, the scope of that obligation is not clear. Should the concept of proportionality apply to preservation obligations? And, if so, how do you apply it?
The issue of proportionality is of critical importance and, in some cases, dramatic significance. For example, in proposed class actions involving large numbers of employees over extended periods of time, the expense and effort involved in simply identifying potential custodians and preserving potentially relevant data can eclipse the real amount in controversy. To compound the problem, at the inception of a case, when preservation decisions have to be made, determining the scope of the issues involved and the individuals whose data must be preserved is rarely easy or clear. It is commonplace for cases ultimately to be dismissed on motion before discovery -- but only after hundreds of thousands, or even millions, of preservation dollars are wasted.
Courts are split on whether, and if so, how, a party may limit the scope of its preservation efforts in a given case commensurate with the likely significance of the information and the amount at issue. U.S. District Judge Colleen McMahon of the Southern District of New York recently added her views to the debate in Pippins v. KPMG, No. 11 Civ 0377, 2012 WL 370321 (S.D.N.Y. Feb. 3, 2012). The court endorsed the concept of proportionality, but pointedly refused to grant KPMG relief from full preservation activities, as a result of KPMG's perceived lack of cooperation in the discovery process and failure to demonstrate that the value of preservation was outweighed by the costs. This case provides useful lessons in evaluating and applying proportionality analysis to preservation obligations.
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By: Wayne Matus, John Davis and Peter Ostrovski