The Georgetown Law Advanced eDiscovery Institute (AEDI) held in Washington, D.C., always presents as an outstanding educational experience even for the most sophisticated e-discovery attorney. This year was no exception. The Honorable David G. Campbell, Senior Judge, U.S. District Court for the District of Arizona, and the Honorable Paul Grimm, District Judge, U.S. District Court for the District of Maryland, opened the conference on November 17 with a discussion on proportionality and whether we are achieving proportionality in practice. Spoiler alert, we are not.

TransPerfect Legal Solutions was again onsite as a conference sponsor. Day one sessions covered hot topics in e-discovery, defensible data disposition, collaboration tools, TAR, privacy, and how to be a better advocate over Zoom. Day two presentations covered fabricated evidence, data transfer agreements, implications for preservation, collection and control of former (work-from-home) employee data, discovery in China, data security, and e-discovery training for non-e-discovery professionals. The conference ended with a “People’s Court” where nine judges argued hypotheticals pertaining to a Rule 30(b)(6) deposition request, an attorney-guided self-collection, the scope of redactions, and production without review.

Keynote: Proportionality Amendment Revisited

Federal Rules of Civil Procedure Rule 26(b)(1) were revised in 2015 where the predominant theme of relevance was replaced with proportionality. The text now reads in part, “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case...” When it is not, the burden is on the party to timely raise the issue with the court.

Judges Campbell and Grimm reported that only a small number of parties are properly arguing proportionality (5% was suggested by Judge Campbell) and, while there is no shortage of tools to ascertain the efficiency of discovery, the parties are not providing the court with sufficient information as to why a request may not be proportional. For example, this may be because counsel is not fully versed in their client’s IT systems and cannot articulate the technical limitations, or there may be no limits on the number of relevant custodians.

Judge Campbell went on to encourage the parties to address these limits and include them in a Case Management Order, but neither judge would like to see motion practice rather promptly address the disagreement with a phone call.

Both judges agreed that the sources of information that should be harvested and reviewed first are those that are target-rich environments. Perhaps that is key custodian email or mobile phone data. Regardless, the judges’ point was to draw limits around the timeframe, sources, and the number of custodians and to work with opposing counsel if they can justify needing more data.

The other option suggested by Judge Campbell would be to scrap the discovery system and go to a method of judge-directed investigation. Otherwise, for our system to work, Judge Campbell said we need cooperation, proportionality, active management by the bench, and a meaningful spoliation rule.

The presentation explored the six factors in Rule 26(b)(1) needed for supporting a proportionality argument: (1) the importance of the issues at stake in the action, (2) the amount in controversy, (3) the parties' relative access to relevant information, (4) the parties’ resources, (5) the importance of the discovery in resolving the issues, and (6) whether the burden outweighs the likely benefit. It also explored the guidelines and best practices published by the Bolch Judicial institute at Duke Law School and the Honorable Elizabeth D. Laporte’s best practices taken from A Practical Guide to Achieving Proportionally Under New Federal Rule of Civil Procedure 26.

Practical takeaways

• An overwhelming majority of litigants are omitting a potentially winnable proportionality argument.
• Judges are asking litigators to leverage Rule 16 or a similar conference to bring these issues and supporting information to their attention.
• When objecting on proportionality grounds, an affidavit or evidentiary proof of the time and/or expense is needed.
• To secure an affidavit or evidentiary proof, litigators need to understand and know about how their clients’ IT systems create, store, and retain data, and what it takes to collect, process, and review that data.