Trends in Proportionality – Guest Blog Post by Josh Gilliland

  • November 14, 2019
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    Lawsuits are about people. Who did what when is the crux of every dispute. Living in an age where people can send email, text, and chat from their phones, there can be a lot of places to look for discoverable data in a dispute. The proliferation of data could make preservation, not to mention requesting discovery, wildly complex. In order to meet these challenges of staying focused on relevant data, the 2015 Amendments to the Federal Rules of Civil Procedure placed “proportionality” at the front of discovery analysis to limit discovery to “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” There are six factors to consider in determining whether data is proportional to the needs of the case, which often focuses on whether the burden or expense of the proposed discovery outweighs its likely benefit. Federal Rules of Civil Procedure, Rule 26(b)(1).

    Proportionality analysis requires understanding not just what a case is about, but also what is in dispute in discovery. As US Magistrate Judge Karen L. Stevenson described in a discovery dispute over search terms applied to custodians, “proportionality must be assessed by considering the specific context of the custodian and/or repository against which the search terms will be applied.” Blackberry Ltd. v. Facebook, Inc., 2019 U.S. Dist. LEXIS 165849, at *22-23 (C.D. Cal. Aug. 19, 2019).

    Proportionality is not a magic word to use for objections, but a workflow in understanding the claims and defenses of a lawsuit. Moreover, competent representation requires many of the same actions for proportionality analysis. Federal and state court judges across the United States have taken action to ensure proportionality is incorporated into litigation analysis. Consider the following examples where proportionality and competency intersect with electronically stored information:

    The 7th Circuit ESI Pilot Program

    The 7th Circuit Electronic Discovery Pilot Program Committee was formed in 2009 with the goal of furthering the interests of Rule 1’s cost-effectiveness in electronic discovery. The Committee’s Principles Relating to the Discovery of Electronically Stored Information (Second Edition, January, 2018), state that proportionality “must be applied in every case when formulating a discovery plan.” Principle 1.03. The Principles further define meet and confer responsibilities on the preservation of electronically stored information. Principle 2.01(a)(1); (2); and (3). Moreover, attorneys are to educate themselves on how the client’s discoverable information is stored before the meet and confer discussions. Principle 2.01(c).

    The Michigan Rules on eDiscovery

    The Michigan Supreme Court promulgated new rules on proportionality in cases with electronically stored information starting on January 1, 2020 (See New Michigan Court Rules: Accelerating Into the Digital Age for detailed discussion).

    The Michigan Rules specifically require the parties adopt a preservation plan; identify potentially relevant files and data sources and determine their accessibility; and provide a list of relevant custodians and all documentation within their control within 14 days of answering a complaint. MCR 2.401(J)(1).

    California eDiscovery Competency Rules

    The State Bar of California Standing Committee on Professional Responsibility and Conduct addressed, “What are an attorney’s ethical duties in the handling of discovery of electronically stored information?” in Formal Opinion No. 2015-193. The answer included, in part, being able to:

    • Implement/cause to implement appropriate ESI preservation procedures;
    • Analyze and understand a client’s ESI systems and storage;
    • Advise the client on available options for collection and preservation of ESI; and
    • Identify custodians of potentially relevant ESI.

    Formal Opinion 2015-193.

    The Standard for Discovery is Reasonableness, Not Perfection 

    The central issue for attorneys in discovery is whether their discovery plans are reasonable; perfection is not the test for making a production. Chen-Oster v. Goldman, Sachs & Co., 285 F.R.D. 294, 306 (S.D.N.Y. 2012), citing The Sedona Conference, The Sedona Conference Database Principles: Addressing the Preservation and Production of Databases and Database Information in Civil Litigation, March 2011 Public Comment Version, at 32.

    While there is wide support around proportionality, there has been a struggle to move this from a concept to an actionable workflow.  I was pleased to learn of a new approach which meets this objective. Evidence Optix® is a SAAS-based technology-enabled solution that operationalizes proportionality by leveraging a workflow starting with custodian interviews, defining relevancy, identifying sources of electronically stored information, and classifying the burden and effort of moving selective data sources through discovery. This methodology creates a framework that systematically organizes and ranks custodians to the claims and defenses and quantifies the costs from collection, through review and production.

    Conducting meaningful custodian interviews is the first step in demonstrating reasonable and proportional analysis in discovery. Moreover, by analyzing a client’s ESI storage and data systems, an attorney can advise on options for collection of  relevant ESI, which complies with both an attorney’s ethical duties and discovery requirements.

    Attorneys can track responses in Evidence Optix® relating to a custodian’s relevancy ranking and identification of unique, relevant, non-duplicative content, along with overall discovery management. Being able to organize discovery based on a custodian’s relevancy ranking enables counsel to make decisions based on information instead of  speculation. This eliminates a meet and confer where attorneys use phrases such as “I don’t know” or “it’s a lot of computers.” Moreover, it can allow attorneys to accurately represent the projected discovery costs to a court with clarity, rather than guess work. Lastly, a targeted preservation and collection strategy with a focus on right-sizing discovery results in lower costs in collecting, processing, and reviewing ESI.

    Many attorneys have a mindset from spoliation cases before the 2015 Amendments to the Federal Rules of Civil Procedure, to collect broadly without client interviews and sort out relevancy later. This is an expensive strategy, especially since sanctions now require the intent to deprive under Rule 37. Proportionality was moved forward in Rule 26 requiring attorneys to focus on the merits of the lawsuit to identify what is relevant to the case. Judges do not want to make rulings based on mere statements of “it’s expensive.” Demonstrating specific facts is the key to preparing for meet and confers, status conferences, and motion practice.

    Recent case law has highlighted the importance of identifying key custodians and the sources of electronically stored information in a lawsuit. Knowing who is relevant to a lawsuit, where the relevant data is, how much data needs to be collected, and the projected cost to process and review that data, is the crux of proportionality analysis.

    Evidence Optix® allows legal teams to take control of discovery by factually identifying relevant custodians and data sources with specificity. To learn more on how Evidence Optix® can help you, please visit their website at www.proportionaldiscovery.com.

    Author: Guest Blogger Josh Gilliland
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