Since the 2015 changes to the Federal Rules of Civil Procedure (FRCP), proportionality in eDiscovery has become more emphasized – and rightly so. But the process of balancing benefit and burden to determine what’s proportional has been highly subjective before and since the Rules changes. Here’s a new industry initiative that is looking to develop a model to make the process less subjective and more defensible.
FRCP Proportionality Amendments of 2015
In case you didn’t know (or forgot), the 2015 Amendments to FRCP 26(b)(1) specifies six factors in determining whether the propounded discovery is “proportional to the needs of the case:” 1) the importance of the issues at stake in the action; 2) the amount in controversy; 3) the parties’ relative access to relevant information; 4) the parties’ resources; 5) the importance of the discovery in resolving the issues; and 6) whether the burden or expense of the proposed discovery outweighs its likely benefit. It’s important to note that much of the language associated with the Rule 26(b)(1) amendment is actually from the old Rule 26(b)(2)(C)(iii), but raised to higher prominence in the Rules with the 2015 amendments. Notably, the comparison of burden or expense to benefit is the last proportionality factor in the rule.
Assessing Proportionate Benefit and Burden ESI Model
The James F. Humphreys Complex Litigation Center of The George Washington University Law School has embarked on a project (listed here among the current Litigation Center projects) to develop a proportionality benefit-and-burden model that provides a practical means of assessing claims of proportionality by plaintiff and defense counsel. The model, which is based on Prism Litigation Technology’s Evidence Optix® proportionality assessment framework, is a process that ranks custodians and their respective data sources by priority and discovery burden. After sorting into four broad categories, custodians ranked highest in priority at least burden are quickly identified. Under the process, a table of projected discovery costs for every custodian and every data source is also developed, and updated during the litigation, to refine proportionality assessments.
The model is intended to provide a structured methodology, which enhances a party’s proportionality assessments, facilitates discovery negotiations with the opposing party, and better informs judicial resolution of discovery disputes. It also provides an early snapshot identifying custodians and data sources most likely to bear fruit at least burden, which can lead to a better understanding of the needs of the case and identify custodians and data sources who should be examined next. Participants on the steering committee and editorial board include numerous judges, attorneys, and eDiscovery experts.
John Rabiej, who was previously Director of Duke Law School Center for Judicial Studies (which included an active role in leadership of EDRM when it was owned by Duke Law), is partnering with GW’s Humphreys Complex Litigation Center to lead this initiative. With regard to the model and how some might view it skeptically as a tool to be weaponized against themselves in actual litigation, Rabiej said, “The model has two strong safeguards to prevent that. First, the model targets only the benefit and burden/cost factor. It does not claim to make the final proportionality assessment finding. That can be done only after considering the six Rule 26(b) factors. Second, the model is not static. Its benefit and burden assessments are based on criteria that can be updated throughout the litigation as new information is learned.”
Mandi Ross, who is Founder and CEO of Prism Litigation Technology and one of the members of the steering committee, said: “The time and energy that is dedicated to eDiscovery still often overshadows the merits of the case, making it too expensive, time consuming, and overly broad. The GW framework we are developing is designed to be an industry standard model which operationalizes proportionality and enables legal teams to create a defensible, transparent approach to right-size discovery early. It’s also designed to be applicable to both MDL class action litigation, which is traditionally asymmetrical, as well as commercial B-to-B litigation.”
The proportionality model is not without controversy. Although the finished model will be adopted and built by a responding party (often the defense but increasingly the plaintiff as well) and will depend largely on information that is exclusively in its hands (e.g., burden and cost), the project at the outset invited 12 plaintiff lawyers.
Rabiej added, “Their suggestions resulted in many edits – clarifying and refining the project’s goals. Nonetheless, the plaintiff lawyers expressed concerns that any proportionality assessment might exclude relevant information and concluded that the model must mandate fulsome party cooperation in its development to safeguard against losing important relevant matter. Although the federal rules promote party cooperation as an aspirational goal, cooperation is not required. The project leaders concluded that the model could not mandate how counsel are to develop it, and the user must decide for themselves the value and extent of transparency and party cooperation.”
“Instead of mandating cooperation, the model itself is drafted neutrally; leaving the decision to the user whether to share and work with opposing counsel in developing the rankings and estimating costs, or maintain confidentiality and develop the model on their own terms”, Rabiej continued. “The Complex Litigation Center plans to develop best practices in the future implementing the proportionality model, which will focus on transparency and party cooperation. The plaintiff lawyers disagreed and determined to go in an entirely different direction, however, and withdrew from the project.”
The model is targeted to be published for public comment by the end of the year. In addition, the Complex Litigation Center plans to hold an online bench-bar conference on the proportionality model on March 25-26, 2021. The views from all quarters of the legal profession and eDiscovery experts will be sought and seriously considered by the project’s editorial board before it issues a final version.
Proportionality arguments are among the most common eDiscovery-related disputes there are (believe me, I know, as I cover 60 to 70 cases a year), so a model that helps operationalize proportionality determinations will certainly be a good thing for the industry and the legal profession. Even if it means I might have less eDiscovery case law to cover! ;o)
So, what do you think? Do we need a formalized approach to proportionality determinations in litigation? Would the judiciary appreciate a more standardized model? Please share any comments you might have or if you’d like to know more about a particular topic.
Disclaimer: The views represented herein are exclusively the views of the authors and speakers themselves, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.