One of the most important aims of the 2015 amendments to the Federal Rules of Civil Procedure was the elimination of unnecessary or wasteful discovery. While a worthy objective, this goal is often elusive. Counsel, clients, and even the courts often get caught up in ensuring that every responsive document has been produced or otherwise accounted for in discovery. Though understandable, this approach is an unproductive and exhausting discovery trap. It squanders resources while failing to accomplish the very purposes for which discovery has been undertaken.

Sampling as a Solution

In contrast, there are other methods and tools that can simplify the discovery process while reducing expenses and wasted opportunity costs. One of the best ways available for doing so is sampling.

Sampling encapsulates a very simple concept: that a few can adequately represent the many. Sampling has been deemed a sufficient measure in a variety of different circumstances. For example, sampling is used to measure patient health, to determine how voters are leaning on a particular candidate or ballot measure, and even to gauge the coordination of air traffic.

In like manner, a properly designed sample of electronically stored information has been considered sufficient for discovery purposes. In particular, sampling can be used to depict information from a broader set of data among dozens or hundreds of custodians spanning a range of years. This is confirmed by the Manual for Complex Litigation. Published by the Federal Judicial Center as a resource for managing complex cases, the Manual provides that sampling is an acceptable method for responding to discovery:

Acceptable sampling techniques, in lieu of discovery and presentation of voluminous data from the entire population, can save substantial time and expense, and in some cases provide the only practicable means to collect and present relevant data.

Whether the methods chosen for creating a sample are acceptable depends on a variety of factors. According to the Manual, those factors include whether:

• the population was properly chosen and defined;

• the sample chosen was representative of that population;

• the data gathered were accurately reported; and

• the data were analyzed in accordance with accepted statistical principles.

Case Law and Sampling

Courts have followed the Manual s guidance and used sampling to proportionally balance the burdens of discovery against its benefits. For example, U.S. District Court for the District of Kansas in Duffy v. Lawrence Memorial Hospital recently ordered that sampling be used both to alleviate the defendant s production burdens and to ensure that responsive information was actually produced in discovery.