Remember when I told you a few months ago about the new industry initiative from The George Washington University Law School to develop a practical proportionality relevancy-and-burden assessment model? Here’s the conference where that model and the challenges associated with proportionality in discovery will be discussed by Federal judges, prominent practitioners and other experts.
On Thursday, March 25 and Friday, March 26, the James F. Humphreys Complex Litigation Center as they host an online bench-bar conference, which will review the GW Discovery Proportionality Benefit-Burden Model.
The conference will examine a work-in-progress discovery proportionality benefit-burden model, developed under the center’s auspices by teams of lawyers and judges. The model’s structured methodology creates a new analytical framework, which is designed to enhance a party’s proportionality assessments, facilitate discovery negotiations with the opposing party, and better inform judicial resolution of discovery disputes.
“Proportionality hasn’t been leveraged by the legal profession to right-size discovery for the same reason that bedevils counsel in all discovery – mistrust. Presenting a granular record of the decisions assessing costs and burdens made in discovery will provide opposing counsel and the judge information to evaluate and challenge the responding party’s assessments”, said John Rabiej, Chair of the George Washington Law Proportionality Initiative.
The model is a process that classifies custodians and their respective data sources into four broad categories by priority and discovery burden. Custodians with highest priority at lowest discovery burden are quickly identified. Under the model, a table of projected discovery costs for every custodian and every data source is developed to refine proportionality assessments. The model’s assessments can be adjusted periodically to account for evolving and new information learned through interactions and negotiations with opposing party. Below is an illustrative example of the model’s core features, its “heat map” and table of costs. A Work in Progress draft of the entire Framework is available here.
“It is time to rethink our approach to discovery in order to target truly relevant data that is proportional to the needs of the case. The new framework disrupts the current method by creating an easy-to-follow, metrics-driven proportionality workflow that produces the outcome envisioned by the 2015 FRCP Amendments”, stated Mandi Ross, CEO and Managing Director of Prism Litigation Technology.
Twelve federal judges and 23 prominent practitioners and other experts will lead discussions with an expected audience of approximately 75-100 practitioners and discovery experts. Those discussions will include sessions to conduct a deep dive into the new framework, discuss a potential foundational issue with the new framework and apply the framework to an actual case and recent case law, among other topics.
“Proportionality in eDiscovery has unquestionably become more prominent since the 2015 FRCP amendments. Less clear has been what proportionality actually means for defining the scope of discovery as a practical matter. It should not be treated as a synonym for ‘unduly burdensome’ or ‘not reasonably calculated to lead to the discovery of admissible evidence.’ Establishing an iterative, voluntary framework for assessing proportionality as it applies to preservation and production can reduce costs by prioritizing the meaningful over the minutiae, and by assisting both parties and courts with objectively gauging assertions of disproportionality”, said Martin Tully, Partner and Co-Founder of Actuate Law.
You can register for the two-day conference here. The registration fee is $299. On request, a deeply discounted group deal for up to five individuals is offered at $750. If you would like to register a group, please email staff@navisevents.com, and Navis will contact you with the registration template, along with the invoice for the group-registration fee. CLE will be applied for in New Jersey. Attorneys will receive a Certificate of Attendance and a completed Uniform Application for Accreditation form after the conference in order to submit CLE hours for your state.
“Although discovery is designed to ensure that all parties are well-informed before trial, courts need not tolerate discovery that is inefficient, time-consuming, or ill-suited to the economics of the case. Accordingly, proportionality is an essential component of every discovery schedule”, stated Hon. Christopher P. Yates, 17th Circuit Court, Michigan Specialized Business Docket.
Following the conference, the center will continue to refine the model and publish it for public comment. The center will also consider developing best practices promoting the use of the model as a standard proportionality-analysis framework for the bench and bar. Judges and practitioners attending the conference will be given the first opportunity to join teams drafting these influential class-action best practices and guidelines under the center’s auspices with assistance of its Scholars Council.
As discussed in the 2020 eDiscovery Case Law Year in Review Report released by eDiscovery Assistant and eDiscovery Today last week, there were 889 case decisions last year for which proportionality was a dispute issue, nearly a third of all cases covered by eDiscovery Assistant last year and even a more common dispute issue than sanctions! So, it will be very interesting to see how the framework continues to evolve and to what extent it impacts the significant proportionality challenge the legal profession faces today.
Speaking of the Case Law Year in Review Report, join Kelly Twigger and me for the #CaseOfTheWeek tomorrow at 11:30am ET here, where we’ll discuss the trends associated with the report and what they mean for legal professionals going forward!
So, what do you think? Do you think we need a framework to operationalize proportionality assessments? 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 author, 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.