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.
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