Category Archives: GDPR

By John Patzakis

Corporate legal departments face ever-increasing costs and risk related to eDiscovery, driven largely by excessive and indiscriminate data collection. Many organizations default to an overbroad “collect everything” approach out of an abundance of caution or due to inefficient workflows imposed by third-party service providers or even outside counsel. Over collection results in far higher costs upstream, critical delays and increased risk. However, for this reason courts consistently endorse proportional and targeted discovery practices that balance the needs of litigation with cost-effectiveness and reasonableness. But in order to best realize the benefits of proportionality, organizations should establish an in-house eDiscovery capability supported by best-practices technology.

Courts Support Proportional and Targeted ESI Collection
The Federal Rules of Civil Procedure (FRCP) emphasize proportionality and reasonableness in discovery. Specifically, Rule 26(b)(1) limits discovery to information that is relevant to any party’s claim or defense and proportional to the needs of the case.

Courts have routinely upheld this principle, encouraging parties to avoid overbroad collections:

1. The Sedona Conference Principles
   While not binding, courts frequently rely on The Sedona Principles, which advocate for “reasonable and good faith efforts” to identify relevant ESI. (See The Sedona Principles, Third Edition, 19 Sedona Conf. J. 1 (2018)). Courts cite these principles to support reasonable limits on preservation and collection.
2. In re Bard IVC Filters Prods. Liab. Litig., 317 F.R.D. 562 (D. Ariz. 2016)
   Here, the court recognized the proportionality limits of Rule 26(b)(1) and ruled that the defendant’s proposed targeted discovery approach—using custodians, date ranges, and agreed-upon search terms—satisfied its obligations.
3. Oxbow Carbon & Minerals LLC v. Union Pacific Railroad Co., 322 F.R.D. 1 (D.D.C. 2017)
   The court rejected broad discovery requests that lacked proportionality, holding that the producing party could limit its search for ESI to agreed-upon custodians and relevant date ranges. The court emphasized that broad, burdensome demands are contrary to Rule 26(b)(1).
4. Hernandez v. City of Houston, No. 4:16-CV-3577, 2020 WL 2542625 (S.D. Tex. May 19, 2020)
   Here, the court denied a motion to compel additional production of ESI beyond agreed search terms, explaining that the requested expansion was disproportionate given the marginal relevance and substantial burden of additional collection.

These and other decisions (further analysis available here) demonstrate that targeted, proportional collection efforts are not only defensible but expected by the courts. Overcollection is hardly mandated by the court and, in fact, can increase risk by preserving irrelevant or privileged information unnecessarily.

So, the problem is not the law. The challenge is that many eDiscovery service providers favor full disk imaging or other forms of massive data over-collection for two reasons: 1) As they are not integrated into a company’s IT data architecture with an established and repeatable process, they revert to a reactive, once-off effort to collect everything that could possibly be relevant; and 2) They are financially incentivized to collect as much data as possible.

Advantages of In-House eDiscovery Capabilities for Targeted Collections
To align with the principles of proportionality, legal departments should move away from the outsourced collection model that favors bulk extraction. Instead, maintaining an in-house eDiscovery capability provides the following key advantages:

1. Integrated, Precise Search and Collection
   Solutions like X1 Enterprise are designed to index data in place, allowing corporate legal and IT teams to search, cull, and collect only what is relevant—without moving massive volumes of unnecessary data. This reduces costs and minimizes data exposure.
2. Iterative, Defensible Process
   With in-house capabilities, legal teams can collaborate directly with IT to conduct collections iteratively. They can refine search criteria and custodians in real-time, in response to case developments or meet-and-confer negotiations, ensuring defensibility and responsiveness.
3. Faster Response Times and Lower Costs
   Deeply integrated technology removes reliance on expensive, reactive third-party vendors who often require full data exports up front. By indexing data where it resides, in-house teams can respond quickly to litigation holds and discovery deadlines.
4. Enhanced Compliance and Risk Management
   By avoiding massive data dumps, corporations reduce the risk of producing irrelevant, privileged, or sensitive data unnecessarily. Proportionality helps mitigate privacy risks and comply with data minimization principles under privacy laws like the GDPR and CCPA.
5. Control and Repeatability Across Multiple Use Cases
   In-house solutions preserve institutional knowledge and workflows. Future cases can reuse workflows and search parameters, creating repeatable, consistent, and auditable processes. Further, the same process can be readily leveraged for various information governance and other compliance use cases.

Conclusion
Courts expect discovery to be proportional, targeted, and reasonable—not excessive or indiscriminate. Establishing an in-house eDiscovery capability with proven integrated technology like X1 Enterprise allows your organization to operationalize this legal standard. By doing so, you will reduce costs, minimize risks, and demonstrate good faith compliance with discovery obligations.