Indiana Supreme Court Opinion Cites “The Burden of Privacy in Discovery” by Robert Keeling and Ray Mangum

Over five years ago, Robert Keeling and Ray Mangum published an article titled The Burden of Privacy in Discovery.  The piece argued that privacy considerations could properly be weighed as a “burden” under the proportionality analysis required by Rule 26(b)(1) in defining the scope of discovery.  The article was first published by The Sedona Conference Journal  in 2019 and later, in 2021, appeared in Duke Law School’s Judicature in a slightly revised form. The article was subject to critique by those who argued that privacy considerations should remain distinct and could properly be addressed through a protective order.

Fast forward to 2025, and a recent opinion published by the Indiana Supreme Court cites favorably to the argument put forth by Robert and Ray.  In the article, the authors stated that “an emerging consensus of courts and commentators has concluded that privacy interests may — and indeed, should — be considered as part of the proportionality analysis required under Rule 26(b)(1).”  Last week, in Jennings v. Smiley, the court said the following:

Though proportionality in discovery may often implicate financial considerations, an emerging consensus among courts and commentators considers the invasion of privacy interests a “burden” to weigh against the “likely benefit” of discovery. Keeling & Mangum, supra, at 68; see also The Sedona Conference, The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production, 19 Sedona Conf. J. 1, 69 (2018) (concluding that proportionality analysis requires consideration of financial burdens as well as “non-monetary costs,” including the “invasion of privacy rights”).

We find several reasons to join in this consensus.

The impact of the 2019 article demonstrates how novel thought leadership can significantly shape larger considerations, decisions, and implications.  As these new ideas or approaches gain traction, they influence the broader practice and advance the field by prompting practitioners and courts to reconsider established frameworks and adapt to emerging thinking and trends. 

At Redgrave, we work to approach complex issues with a fresh and holistic perspective, carefully examining all angles, including historical precedents, future implications, and multifaceted insights.  This approach influences our thought leadership and involvement as leaders in prominent eDiscovery, law, and policy organizations, ensuring that we continue to be at the forefront of influencing and advancing the Information Law field, which positions us to provide cutting-edge and practical advice to clients.