The long awaited order regarding the preservation of thousands of computer hard drives in Pippins v. KPMG was finally issued last week. In a sharply worded decision, the Pippins court overruled KPMG’s objections to the magistrate’s preservation order and denied its motion for protective order. The firm must now preserve the hard drives of certain former and departing employees unless it can reach an agreement with the plaintiffs on a methodology for sampling data from a select number of those hard drives.
Though easy to get caught up in the opinion’s rhetoric (“[i]t smacks of chutzpah (no definition required) to argue that the Magistrate failed to balance the costs and benefits of preservation . . .”), the Pippins case confirms the importance of both cooperation and proportionality in eDiscovery. With respect to cooperation, the court emphasized that parties should take reasonable positions in discovery so as to reach mutually agreeable results. The order also stressed the importance of communicating with the court to clarify discovery obligations. In that regard, the court faulted the parties and the magistrate for not seeking the court’s clarification with respect to its prior order staying discovery. The court explained that the discovery stay – which KPMG had understood to prevent any sampling of the hard drives – could have been partially lifted to allow for sampling. And this, in turn, could have obviated the costs and delays associated with the motion practice on this matter.
Regarding proportionality, the court confirmed the importance of this doctrine in determining the scope of preservation. Indeed, the court declared that proportionality is typically “determinative” of a motion for protective order. Nevertheless, the court could not engage in a proportionality analysis – weighing the benefits of preserving the hard drives against its burdens – as the defendant had not yet produced any evidence from the hard drives to evaluate the nature of the evidence. Only after the evidence from a sampling of hard drives had been produced and evaluated could such a determination be made.
The Pippins case demonstrates that courts have raised their expectations for how litigants will engage in eDiscovery. Staking out unreasonable positions in the name of zealous advocacy stands in stark contrast to the clear trend that discovery should comply with the cost cutting mandate of Federal Rule 1. Cooperation and proportionality are two of the principal touchstones for effectuating that mandate.