Here’s a Report from the George Washington Bench-Bar Conference on Proportionality: eDiscovery Best Practices

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.  And then I told you about the upcoming online bench-bar conference in late March, which was held to review the GW Discovery Proportionality Benefit-Burden Model.  Now, here’s a report from the George Washington Bench-Bar Conference from Prism Litigation Technology.

The article Time to Spring Forward – A New Framework for Discovery (written by Janice Yates) recapped the goal of the New Framework, whose steering committee and drafting teams included 56 judges, practitioners, and eDiscovery experts, which is “to develop a discovery-proportionality benefit-and-burden assessment model that provides a practical means of assessing claims of proportionality.”  Below is an illustrative example of the model’s core features, its “heat map” and table of costs.  The latest work-in-progress draft of the Framework can be found here.

The goal of the two-day Bench-Bar conference was to present the draft guidelines for discussion and input.  During the conference, expert panelists included a dynamic mix of judges, drafting team members, in-house corporate lawyers, and practitioners from “both sides of the V”. Janice notes that “[a]s one can imagine with such a disparate group, the discussions were spirited.” But she also notes that there was a general consensus on one important point – a framework that moves the discovery process forward, is more transparent and less contentious, and produces greater opportunities for cooperation, would be highly advantageous.

The proportionality model is based on a conceptual framework developed by Insight Optix LLC in its patented Evidence Optix® SaaS-based technology.  The New Framework consists of four steps that culminate in a “Heat Map” of custodians and data sources, pinpointing those that are most likely to have knowledge or information relevant to the claims and defenses, and estimating the cost of moving data from collection through review and production. The Heat Map can then be used to present concrete metrics to support discovery scoping, negotiations, and disputes.

Since the Bench-Bar conference concluded, the drafting teams are meeting to revise the guidelines based upon the discussions and feedback presented.  Janice recaps the conference in more detail, including next steps, here.  And if you missed the Bench-Bar conference, TCDI just hosted a 60-minute webinar that brings together several of the project’s contributors and its principal editor to explain the main components of the New Framework.  Don’t worry, you can still catch the recording here!

So, what do you think?  Do you think a framework for proportionality is a good thing for the industry?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclosure: Prism Litigation Technology is an Educational Partner and sponsor of eDiscovery Today

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.

One comment

  1. […] As a producing party in litigation, taking full advantage of those early days in the case before the meet and confer means implementing a defensible, transparent methodology to evaluate the relevancy of your custodians and quantify the effort and burden associated with discovery.  Leveraging technology and methodology means that you don’t even need anywhere near the full 100 days.  Janice’s article discusses how Evidence Optix® (EO) is a technology-enabled workflow that promotes that defensible, transparent methodology and she references how the proportionality assessment analysis facilitated by EO reduced the total number of custodians for which all data needed to be collected from 227 to only 29 – in one week!  EO is also the basis for the Discovery Proportionality Model initiative currently in progress at The George Washington (GW) University Law School Complex Litigation Center (which I previously covered most recently here). […]

Leave a Reply