May 5, 2021
By Janice Yates
The phrase, “there’s nothing new under the sun” is popular because in most cases, it’s true. On March 25-26 of this year, The George Washington University Complex Litigation Center held a Bench-Bar conference introducing a New Framework for proportionality in discovery that defied that maxim. Nothing completely new, however, comes without a bit of controversy. But as inventor Charles Kettering said, “The world hates change, yet it is the only thing that has brought progress.”
The goal of the New Framework, whose steering committee and drafting teams included 56 judges, practitioners, and ediscovery experts, is “to develop a discovery-proportionality benefit-and-burden assessment model that provides a practical means of assessing claims of proportionality.”1 The model is based on a conceptual framework developed by Insight Optix LLC in its patented Evidence Optix® SaaS-based technology.
This was no ordinary event. During the two-day conference, expert panelists included a dynamic mix of judges, drafting team members, in-house corporate lawyers, and practitioners from both sides of the V. As one can imagine with such a disparate group, the discussions were spirited. 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 New Framework consists of four steps2 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.3 The Heat Map can then be used to present concrete metrics to support discovery scoping, negotiations, and disputes.
Judicial participants astutely pointed out that the discovery process should be used to find those few key documents that would be used during trial to prove claims, often amounting to fewer than 100. Collecting terabytes of data does not necessarily lead to a better likelihood of producing those essential pieces of evidence. The New Framework focuses discovery, lowering burden and cost, and accelerates the process through early evaluation performed before data collection occurs.
Corporate counsel on the panels viewed the New Framework positively. Benefits discussed most favorably included the ability to: estimate discovery costs more accurately; frontload information to help inform early case strategy; have a consistent process throughout the litigation lifecycle, including collaboration with outside counsel; and probably most importantly, the New Framework flips the standard from reactive to proactive discovery management. Although hesitant to state this would be used transparently in the early stages of a matter, in-house counsel did state that it would encourage cooperation.
Not everyone agrees. The adversarial judicial system in the United States naturally creates opposing sides, often engendering distrust. A few of the panelists voiced concerns regarding the New Framework, fearing that it would be used in a manner that could potentially obfuscate discovery rather than streamline it. Some believe the only viable method of using the New Framework is through disclosure of how the Heat Map is generated, while other panelists considered certain aspects as attorney work product. The guideline document explains that it can be used in multiple ways – fully open and cooperative, partially disclosed, or completely held by the producing party. Indeed, its flexibility of use is part of its allure.
Judicial panelists agreed that the model could be used in various ways, and that presentation of the Heat Map, with its metrics and reporting, would be a welcome and valuable resource to substantiate proportionality arguments with quantifiable metrics during discovery disputes. Although the plaintiffs’ bar worried that the Heat Map, if presented in court, would be taken at face value, the judges adamantly stated that any information provided would be scrutinized closely. Additionally, anything that encourages cooperation between parties in the early stages of discovery is greatly favored. Although the judges would not (at this time) state they would order its usage, they did support use of the framework early in a matter to encourage a more structured approach.
The goal of the conference was to present the draft guidelines for discussion and input. Currently, the drafting teams are meeting to revise the guidelines based upon the valuable discussions and feedback presented. One thing’s for certain – the industry is abuzz about the potential of taking proportionality from a concept to a reality, and these guidelines provide the catalyst to make that happen.
Here’s what we’re looking forward to:
- Judicial and industry surveys will be distributed to gather additional opinions and vet various aspects of the approach in the coming weeks.
- Draft guidelines will be completed by May 14, 2021, at which time they will be issued for public comment.
- Supporting supplemental tools, including cost calculators and prioritization and burden spreadsheets will be issued with the final guidelines to assist practitioners.
- A Model Order outlining the framework is being drafted for consideration by the judiciary.
- Missed the conference? TCDI is hosting 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. Register for the Webinar!
2Steps include: 1) identifying and prioritizing custodians; 2) defining data source burden and effort; 3) creating discovery cost projections; and 4) generation of a “Heat Map” and table, and provides guidance on how these tools can be used at different stages of litigation.
3The drafting team is in the process of developing a discovery cost calculator, which will be included in the guidelines.