ESI in Insurance Litigation: Preparing for FRCP Amendments on Proportionality and ESI Management

E-Discovery Strategies for Insurance Companies and Policyholders

Recording of a 90-minute CLE webinar with Q&A

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Conducted on Wednesday, June 24, 2015

Recorded event now available

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Course Materials

This CLE course will prepare insurance litigators for upcoming amendments to the Federal Rules of Civil Procedure by providing them with the tools to assess proportionality in light of the six factors outlined in the proposed amendments to Rule 26(b)(1) and effectively preserve ESI to avoid the sanctions authorized by proposed Rule 37(e).


More than 90% of all business information is created and stored electronically. Document review and production expenses constitute the lion’s share of discovery costs. E-discovery is the most expensive and time-consuming part of litigation, and insurance litigation is no exception.

Proportionality has been embraced by savvy litigators to efficiently manage potentially staggering costs and time associated with e-discovery. However, many practitioners continue to overlook its importance. The proposed amendments to the Federal Rules of Civil Procedure—which are widely expected to become effective in 2015—will clarify and highlight the importance of considering and applying the principle of proportionality in each case.

The proposed amendments also feature a rewritten Rule 37(e) that clarifies the measures a court may take in response to a party’s failure to preserve ESI, including, in some cases, entry of default judgment. Insurance litigators cannot afford to wait to formulate plans for client information management and discovery. Practitioners must also prepare to work with opposing counsel to manage this challenging process.

Listen as our authoritative panel of insurance litigators discusses best practices for evaluating proportionality, tips for negotiating with opposing counsel to set discovery parameters that will pass judicial muster, and best practices for records and information management affected by the FRCP amendments.



  1. Unique e-discovery issues in insurance litigation
  2. Review of proposed amendments
    1. Rule 26(b)(1) scope of discovery
    2. Rule 37(e) sanctions for failure to preserve ESI
  3. Strategies for achieving proportionality
  4. Best practices for preserving ESI to avoid sanctions
  5. Best records and information management practices to discuss with your clients
  6. Review of court decisions addressing proportionality


The panel will review these and other key issues:

  • How much weight should litigators give to each of the six factors for assessing proportionality?
  • What steps should insurance counsel take in issuing and responding to litigation holds?
  • How can insurance counsel best protect the client’s interests while working with opposing counsel to manage the discovery process?
  • How can insurance counsel help clients be proactive for present and future litigation in light of the FRCP amendments?
  • What types of technology-assisted review tools are available and likely to be accepted by courts?


P. Benjamin Duke
P. Benjamin Duke

Covington & Burling

Mr. Duke is a member of the Insurance Practice Group and represents policyholders in a broad range of complex...  |  Read More

Tomas M. Thompson
Tomas M. Thompson

Duane Morris

Mr. Thompson is a trial lawyer with significant experience resolving insurance, accounting...  |  Read More

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