EdiscoveryCanada.com

A Records Manager from a leading engineering and construction company asks:

"In Sedona principle #5 the value of information being sought is weighed against the time and expense necessary to retrieve the information. This seems to suggest that an organization that has taken the trouble to create a highly-organized information environment would be obligated to produce more information during discovery (because it is easier and cheaper) than an organization with a disorganized or even less-organized information environment.  Could you comment on that?"

It's a good question and one that has been debated by lawyers.  The devious response to Principle #5 (as currently in draft form) would be to cease all records management processes (or don't initiate any) and thereby excuse yourself from production in the event of litigation. That response seems logical but it's as effective as murdering your parents and claiming mercy because you're an orphan.

First, the general principle and basic rule of discovery is still "full" disclosure or relevant non-privileged information. Although proportionality and balancing tests are being applied more frequently, a party who cannot produce even a basic core of relevant documents without incurring unreasonable expense, due to its own lack of organization, would not in my opinion be easily relieved of the obligation. Courts are generally expecting parties - especially large companies and government organizations, to have implemented reasonable records management policies.  

Second, the party whose records are well managed should be able to produce relevant electronic documents inexpensively and is much more likely to have segregated privileged, confidential or irrelevant material, thereby making the disclosure process "safer." Such a party would also have purged its collections of unnecessary backup tapes.

In the end, the party with an effective records management system will (a) have much less information to deal with in the first place; (b) will spend much less money on the production process;  and (c) will have very strong arguments in favour of making the opposing party pay for its own poor business practices.