June 10, 2021
By Janice Yates
Failure to produce. By far, this was the number one discovery dispute last year. According to the 2020 eDiscovery Case Law Year in Review report1 published this year by eDiscovery Assistant2 and eDiscovery Today, 1,382 disputes revolved around this issue. Of these disputes, 889 involved proportionality arguments – nearly twice that of the year prior.
Disagreements over expectations regarding what electronically stored information (ESI) should be produced generate numerous motions to compel, forcing the courts to make rulings which slow dockets and frustrate judges. The intent of Rule 26(f) of the 2006 amendments to the Federal Rules of Civil Procedure (otherwise known as the “meet and confer” rule) was to create an early process that required parties to develop a discovery plan that addresses issues over ESI. That was 15 years ago – so, why are we now seeing more discovery disputes than ever?
One thing is clear – the meet and confer process envisioned by Rule 26(f) is not producing the preferred outcome. Instead of taking advantage of the opportunity to locate ESI and weigh its importance early in the litigation lifecycle, many are still using motions to compel as fishing expeditions and boilerplate proportionality objections as the response. And as recent case law has demonstrated, these arguments are becoming less likely to be accepted by more tech-savvy courts.
To best leverage the meet and confer, better inform your case strategy, and mitigate risk, the first 100 days are the most crucial.3 It is during this time that a savvy litigator would be sure to accomplish the following:
- Determine the importance of a custodian’s role in the matter
- Locate the data sources that will be most likely to produce the essential documents necessary to the case
- Preserve information that may be relevant to the matter
- Gain critical knowledge by sampling data that can be used to support proportionality arguments
The pandemic’s decentralization of business data creates greater challenges to accomplish these tasks. Remote devices must be monitored and preserved. Personal information must be decoupled from business content that co-exists on the same device. If collection is deemed necessary, self-collection methods should be avoided due to defensibility issues. Simply finding all of the repositories of relevant information can be daunting, particularly as people are increasingly using personal devices, cloud-based storage, and applications which are either unknown or not supported by the corporation to conduct business. One custodian could have a dozen relevant sources of data — personal computer, business laptop, cell phone, social media and collaboration apps — the list goes on.
Pre-pandemic norms of preparing for the meet and confer must be updated to account for these changes. Although daunting, using the appropriate tools can easily facilitate maneuvering these first 100 days to ensure an understanding of the dynamics of what is happening with custodians and data in order to avoid (or at least win) those pesky discovery disputes.
Getting Your 100-day House in Order
The emergence of index-in-place technology4 implemented further upstream during the discovery process has become an essential component in quickly understanding the data within your organization. But understanding your data better won’t necessarily help you avoid disputes with requesting parties. To do that, a due diligence approach that assesses burden and relevancy through a defensible, consistent approach is necessary.
The current methodology most often being used to track this early process is still the spreadsheet. Although this may have worked when ESI consisted mainly of email and computer devices, as the technological landscape becomes more cluttered and diverse, the spreadsheet quickly becomes antiquated — particularly since the pandemic. It is incapable of presenting the information needed to determine the importance of custodians and their data, the burden to collect, the cost of review, and the identification of unique and potentially relevant data sources — information critical to preparing a discovery strategy and proportionality arguments.
With 100 days (at most) to prepare, there is no time for a “trial and error” approach to proportionality assessment. You need a defensible, transparent methodology to systematically organize and rank custodians to the claims and defenses of a matter, and also quantify the effort and burden associated with discovery. Evidence Optix® (EO)5 is the first technology-enabled workflow that gets your 100-day house in order. It facilitates assessment and prioritization of relevant custodians and identification of key data sources, while providing the granular metrics you need as the foundation for creating a discovery plan that is proportionate to the needs of the case. Not only that, it also acts as a storehouse of decisioning documentation in the event that others may need to be informed or defend certain actions in the future.
In a recent case study involving 227 potential custodians, the proportionality assessment analysis facilitated by EO reduced the total number of custodians for which all data needed to be collected to only 29. This generated a savings of 87% versus moving all data downstream and was completed in a mere one-week time frame, as shown below.
Just this year, not only was the Evidence Optix® workflow recognized as a Legal Technology Trailblazer6, it also became the basis for the Discovery Proportionality Model7 initiative currently in progress at The George Washington (GW) University Law School Complex Litigation Center. The GW guidelines were developed by 56 judges, attorneys, and ediscovery experts to help practitioners navigate the complex ediscovery process.8 The approach answers the questions that spreadsheets can’t, facilitating the gathering of the information and metrics needed to be best prepared for the meet and confer.
When All is Said and Done
Discovery disputes drive up litigation costs, delay proceedings, and fill court dockets. Judges are expressing increasing frustration over the lack of cooperation, especially when it comes to conducting discovery proportionally (here’s one recent example9). The first 100 days are critical to being fully prepared to negotiate from a position of strength during the Rule 26(f) meet and confer with opposing counsel. Preparing for it by using a proven, industry-accepted methodology will reduce discovery disputes and costs, leading to a more proportional discovery process (not to mention happier judges)!
1Available FREE by following eDiscovery Today via email.
3Since the 2006 Federal Rules changes, Rule 26(f) has dictated conducting the meet and confer “at least 21 days before a scheduling conference is held or a scheduling order is due under Rule 16(b).” With the scheduling order due about 120 days after the case is filed, that gives you as few as 100 days to be ready for the meet and confer.
4Moving From Flintstones to Jetsons: How to Rocket Power Your Search Strategy, by Mandi Ross, March 17, 2021
8Here’s a New Industry Initiative to Develop a Proportionality Benefit-Burden Model: eDiscovery Best Practices, eDiscovery Today, November 9, 2020
9Bierk v. Tango Mobile, LLC, et al., No. 19 C 5167 (N.D. Ill. Feb, 23, 2021)