The [eDiscovery] Times, They are A’Changin’ (with apologies to Bob Dylan)

  • June 2, 2020
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    By Mandi Ross, Martin Tully, and Janice Yates

    Sometimes change comes at you fast — and hard. Indeed, it is hard to believe that it was just early March when we were still attending – in person — conferences, theater performances, and sporting events. We had yet to gain the awe and respect for teachers whom we had to replace at home, heroic health care workers, and even grocery store clerks who risk exposure every day. We had yet to play online meeting Bingo with phrases like “you’re on mute” and “can you see my screen?”

    Let’s face it, life as we know it has changed. And like it or not, our mindset has to change with it. You can either guide the course of change or get run over by it. Our new reality is an economy that was put into near standstill and people trying their best to remain productive while sheltered-in-place. This new world comes with new challenges but also new opportunities. We must take advantage of this moment in time to refocus our thinking about the legal landscape — beyond the pandemic and its immediate effects — particularly as it relates to flattening legal spend and saving money.

    During tenuous financial times, lawyers and law firms must be especially mindful of their clients’ bottom lines. Nimbleness, efficiency, and automation are the names of the game. Corporations will be watching to ensure that their legal dollars are spent mindfully. Reducing legal costs (without sacrificing quality) and leveraging innovation is the new gold standard. If law firms can demonstrate practices that will save clients’ money but still drive value, they will be leaders in an increasingly competitive market. Economic uncertainty can be very painful but it also provides fertile ground for next-generation process and technology, and now is the time to plant and nurture those seeds.

    At the same time, the forced pivot to a largely remote workforce presents a number of challenges to minimizing the cost of eDiscovery. These include:

    • Dispersed work locations and custodians mean greater difficulty in locating relevant documents and information;
    • Increased likelihood of discoverable information created and located on personal devices; and
    • Heightened difficulty in the preservation and collection of scattered data sources.

    Couple these challenges with the almost certain future increase in COVID-19-related litigation for many organizations and insurance companies, and the need for efficiency and precision becomes unmistakable. Fortunately, innovation and technology can be employed to meet this heightened demand and will most certainly be something corporate clients will expect.

    One of the most productive areas in which to now demonstrate and achieve cost efficiencies in litigation is by maximizing use of technology to accelerate recent trends showcasing the importance of proportionality in eDiscovery. Like YouTube did for Justin Bieber, the 2015 amendments to the Federal Rules of Civil Procedure (FRCP) kickstarted a renewed emphasis on proportionality, an inclination that many states have since followed within their own local court rules. See, e.g. In re State Farm Lloyds, Nos. 15-0903, 15-0905, 2017 WL 2323099 (Tex. Mar. 26, 2017) (“Today, we elucidate the guiding principles informing the exercise of discretion over electronic-discovery disputes, emphasizing that proportionality is the polestar.”) Consistent with FRCP 1’s admonition regarding “the just, speedy, and inexpensive determination of every action,” discovery should be a means to an end, not an end in itself. Under FRCP Rule 26(b)(1), information is discoverable if it is relevant to any party’s claim or defense and proportional to the needs of the case. Another proportionality factor is whether the burden or expense of the proposed discovery outweigh its likely benefit. In order to align the discovery effort leveraging proportionality principles, the following strategies should be considered:

    • Reject the “collect everything and review it later” mentality by robustly employing proportionality considerations earlier in the ediscovery process
    • Mindfully rank custodians according to their relevancy to the claims and defenses, clearly delineating the most important custodians, while releasing those deemed to be non-relevant earlier in the process
    • Defensibly score data sources according to the demonstrable burden, effort and cost of collection and the relative informational value of each source
    • Prepare for early disclosures to promote cooperation and transparency
    • Pivot from manual collection of devices to indexing-in-place and cloud-based options for remote, targeted collection and culling
    • Move only unique, relevant data subsets from priority custodians forward to review and production; negotiate exclusion of burdensome and marginally relevant data

    Firms that can similarly pivot to a technology-enabled workflow to lower costs for their clients will be the trailblazers in this new frontier. In this regard, quantifying and demonstrating cost efficiencies will be essential. Because most ediscovery costs come from activities such as collection, review, and production, meaningful cost savings can be realized by moving as little data as possible forward to a hosting and review environment. By quickly identifying priority custodians using a simple 5-minute relevancy interview, followed by surveys with attorney oversight to find unique, easy to collect data sources, a firm can quickly create initial disclosures that can direct the negotiations for further discovery. Commenting upon the new amended Michigan Court Rules that require initial disclosures, Circuit Court Judge Christopher Yates explained, “One of the aims of innovations like mandatory initial disclosures is to force the parties to put the cards on the table earlier. This should, at least in theory, dramatically reduce the scope of necessary discovery.”

    Standardized and well-documented processes that can readily quantify the cost and burden of eDiscovery will also be crucial to defining its proportional scope in a reasonable and defensible manner. In this regard, a well-crafted workflow that delivers a comprehensive, consistent and demonstrable assessment of the factors comprising proportionality will better equip parties to meet their obligations to meet & confer under FRCP 26(f), defensibly delineate initial disclosures under FRCP 26(a)(1)(B), and reach consensus on a reasonable discovery plan. In this regard, even before the 2015 Amendments, courts have required parties to substantively demonstrate contentions that discovery is not proportional and therefore outside the scope of FRCP 26(b)(1), or that the burden or expense of the proposed discovery outweigh its likely benefit under FRCP 26(b)(2)(B). See, e.g., Cargill Meat Solutions Corp. v. Premium Beef Feeders, LLC, No. 13-cv-1168-EFM-TJJ, 2015 WL 3937410 (D. Kan. June 26, 2015) (Holding that to prevail on its proportionality objection, a party must “provide sufficient detail in terms of time, money and procedure required to produce the requested documents.”)

    The goal of proportionality is to ensure that discovery should be just and reasonable, not exhaustive. As Judge Yates notes, “There is always a point in discovery where you’re arriving at diminishing returns. In other words, you can spend a $1 million to get the answer to every single question that anybody could ever have about the background of the case, but it’s just not worth it in 99% of the cases that get litigated.” An innovative firm using technology-enabled workflows designed to support proportionality arguments can dramatically reduce the costs and burden of ediscovery for their clients, thus positioning themselves as a leader in the emerging legal landscape. For more detailed information on how such a workflow can significantly assist the meet & confer process and dramatically save costs, please see the article, “How to Leverage the In Situ Ediscovery Model to Win Proportionality Arguments,” by clicking the link or visiting the ACC Docket website.

    As the bard sang, “If your time [and money] to you is worth savin’ … you better start swimmin’.” Of course, having a good swimming technique is essential for an effective stroke. So, what do you say? Embrace a better workflow and dive into the pool of proportionality!

    ___________________________________
    Mandi Ross is the founder and CEO of Prism Litigation Technology.
    Martin Tully is the founding Partner at Actuate Law LLC and Quointec, LLC.
    Janice Yates is a Senior Ediscovery Consultant with Prism Litigation Technology.

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