Court Extends Proportionality Principle To Duty To Preserve

In Lord Abbett Mun. Income Fund., Inc v. Asami, No. C-12-03694 DMR, 2014 WL 5477639 (N.D. Cal. Oct. 29, 2014), United State Magistrate Judge Donna M. Ryu granted the plaintiff's motion for permission to no longer preserve computer workstations that were peripheral to discovery.  The court extended and applied Rule 26(b) proportionality to the issue of ESI preservation, and gave dispositive weight to the plaintiff's sample-based review of the contents of the devices.

The plaintiff initially preserved a set of 159 computers used at its business location, but subsequently confirmed that these devices were not used by any relevant custodians.  Further, the plaintiff's vendor reviewed a sample of these computers to confirm the irrelevancy of their contents.  On the other hand, the defendants ignored "numerous opportunities [before the close of discovery] to test their belief that the computers may have evidentiary value," and instead based their argument simply on