IST Discover-E White Paper:

Preparing for Discourse on Proportionality

IST Discover-E provides a full slate of eDiscovery consulting services to help law firm and corporate clients properly assess, analyze, develop and implement proactive eDiscovery strategies and tactics to maximize legal return on investment.  Provided in the early stages of an engagement, IST Discover-E’s data collection and eDiscovery services can become the catalyst and blueprint for an eventual winning decision.

Whether relevant, critical or simply trivial, 2019 kicked off on a sour note for Kevin Spacey as his arraignment took place in Nantucket, MA District Court for a felony charge of indecent assault and battery.  Spacey made a pointed decision when he tapped Los Angeles-based attorney, Alan Jackson of Werksman Jackson & Quinn LLP, because Jackson is no stranger to dealing with high-profile cases and wealthy clients.  Jackson touts high-stakes experience in similar cases on his law firm’s site, where he says he represented an heir to an unnamed royal family who was accused of rape and other sex crimes, but after an exhaustive investigation, the D.A. rejected all criminal charges.  Whether this type of ruling is in Spacey’s future is yet to be seen.

Facts and opinions aside, there were some key discussions in the arraignment about preservation of cell phone and cloud data that, although seemingly commonplace, will have significant bearing on the cost and outcome of Spacey’s case.  As Jackson argued for a preservation period of six months after the alleged assault, the D.A. argued for two days asking for further explanation as to “why [the preserved data] might likely be exculpatory versus [the preservation period being] a fishing expedition.”

The D.A. invoked proportionality with his statement as, in the context of Data Collections and eDiscovery, six months’ worth of data could add an enormous financial burden to both sides of the case.  The judge agreed to Jackson’s motion to preserve cellphone and cloud data from the alleged victim for six months, but correctly noted that this requirement could be modified throughout the course of the case – presumably once an eDiscovery spend analysis is performed.

Proportionality is a popular eDiscovery buzzword these days and a concept referenced in the Federal Rules of Civil Procedure (FRCP). In fact, eDiscovery amendments to the FRCP place proportionality front and center making weighing the monetary cost of eDiscovery against the value and importance of the information a primary consideration.  In the Spacey case, the value and importance of the information sought by Jackson’s motion for six months of preservation is being called into question.

eDiscovery can quickly become unduly burdensome, especially for the unprepared.  Parties to a law suit could be faced with a massive data dump that drives costs out of control, which could be surreptitiously weaponized in some cases involving individuals or corporations with deep pockets.  The amended rules to the FRCP safeguard against this behavior, but many litigators have likely already had to sift through thousands of pages of data extracted from a single smartphone in order to find a few lines of text or images to support a case; or, have at least had the unpleasant experience of dealing with email exhibits that have over 10 pages of irrelevant email replies.  While it may prove to be a reasonable and proportional request, the potential eDiscovery burden Jackson’s request could place on either party is substantial.

Instagram made Jackson’s motion more effective.


That said, while requesting all electronically stored communications between certain dates on the alleged victim’s cell phone and cloud accounts (in this case, Instagram) made Jackson’s motion more effective, there are still many more potential data stores that should be in consideration.  Assuming Jackson has conferred with a savvy eDiscovery and data collections partner, he is likely going to request authority to collect from the alleged victim’s other social media, messenger and email accounts.  Given the number of media currently available and the age of the alleged victim, such a request may not be deemed unreasonable.

However, proportionality mandates apply not only to courts, but also to litigants and counsel.  If Jackson is actually fishing, Rule 26 to the FRCP requires both parties serving and responding to discovery to conduct a proportionality analysis, which should prove if his request is nothing more than gamesmanship.   Either way, if a case could potentially involve a giant data dump, or a cagey adversary, retaining an eDiscovery consulting expert is the most secure way to save time, money and potentially help land a winning decision. Partnering with an eDiscovery expert will help guide eDiscovery requests by informing what sort of tech a particular person or company may possess.  That same partner can likely also collect, process, produce and review data in a legally defensible manner.

No matter which way Kevin Spacey’s case turns out, safely collecting and preserving potentially relevant data from computers, laptops, servers, cloud repositories, email accounts, tablets, mobile devices or smart phones should always be top priority.  IST Discover-E’s data collection experts can provide a targeted export of the potentially responsive data for eDiscovery processing by gathering client data in a forensically sound and defensible manner at the start of every eDiscovery project to ensure attorney’s duty to preserve and collect electronic evidence is responsibly upheld.


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