Announcing Publication of Commentary on Proportionality in Cross-Border Discovery

The Sedona Conference and its Working Group 6 on International Electronic Information Management, Discovery, and Disclosure (WG6) are pleased to announce that the Commentary on Proportionality in Cross-Border Discovery ("Commentary") has been published for public comment.

This Commentary examines the landscape of overlapping proportionality and comity analyses, offering summaries and commentary on various approaches before recommending a framework that starts with proportionality as a first step - as a threshold issue of discovery scope - while recognizing that proper proportionality analysis may consider the effect of compliance with the non-U.S. law at issue. If the discovery is proportional to the needs of the case, when so considered, then a separate comity analysis should be conducted. Although those analyses share similar factors, applying them in strict order should minimize analytic and doctrinal problems.

This Commentary also examines the potential costs and burdens of cross-border discovery, including nonmonetary risks and burdens associated with measures implemented to comply with non-U.S. laws, and advises that arguments based on such burdens should be made with sufficient specificity and detail. Further, parties and courts should employ and encourage practices that promote compliance with the non-U.S. laws while reducing burdens of cross-border discovery.

The Commentary is open for public comment through August 28, 2024. Questions and comments may be sent to [email protected]. The drafting team will carefully consider all comments received, and determine what edits are appropriate for the final version.

The Sedona Conference Working Group 6 on International Electronic Information Management, Discovery, and Disclosure

The mission of WG6 is to develop principles, guidance and best practice recommendations for information governance, discovery and disclosure involving cross-border data transfers related to civil litigation, dispute resolution and internal and civil regulatory investigations.

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