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In a law review article, co-authored  by Michael Berman, entitled “Proportionality in the Post-Hoc Analysis of Pre-Litigation Preservation Decisions,” 37 U.Balt.L.Rev. 381, 384 (2008), the writers argued that application of the cost-benefit provisions of the Federal Rules of Civil Procedure to pre-litigation preservation decisions would help reduce the current uncertainty regarding the scope of the duty to preserve that currently plagues potential litigants before a lawsuit is commenced.  Noting that the Federal Rules of Civil Procedure do not apply before a lawsuit begins, the authors argued that it would be logical to apply the cost-benefit provisions of Rule 26(b)(2)(C), and other similar rules, to pre-litigation decisions.

The article has been cited with approval in The Sedona Conference Commentary on Proportionality in Electronic Discovery, 11 Sedona Conf. Journ. 289, 296 n. 20 (2010), and Victor Stanley, Inc. v. Creative Pipe, Inc., et al., 269 F.R.D. 497 (D.Md. 2010), affirmed in part and modified in part on unrelated grounds, No.MJG-06-2662 (D.Md. Nov. 1, 2010), subsequent opinion, (D.Md. Jan. 24, 2011).  In doing so, the Victor Stanley Court noted that the duty to preserve is “neither absolute, nor intended to cripple organizations.”  The Court cited the article for the proposition that “the scope of preservation should somehow be proportional to the amount in controversy and the costs and burden of preservation.”

The law review article suggests that the “uncertain scope of preservation obligations,” when “coupled with the risk of serious sanctions,” encourages “over-broad pre-litigation preservation efforts” to safeguard ESI that actually need not be preserved.  It concludes by asserting that pre-litigation application by analogy of the cost-benefit safeguards of the Federal Rules will define reasonable limits on the duty to preserve and provide “litigants with practical guidelines in a perilous area where a misstep could have significant ramifications.”

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