What is Proportionality?
In one sense, “proportionality” is about balance: weighing the pros and cons of an action in order to decide if that action is justified. For example: Is the cost worth the potential benefit? When applied to law, the concept of proportionality is central to the extent, limits and reasonableness of discovery in litigation (see, e.g., Fed. R. Civ. P. 26).
Due to the electronic nature of how we all do business (and conduct our lives!),there has been for some time now a data information overload which has complicated the proportionality analysis attorneys and courts must conduct in regard to discovery. As a Senior E-Discovery Project Manager who has been in the business for close to two decades, I have witnessed firsthand the explosion in electronic data and the resulting struggle clients and case teams face in trying to balance the importance of certain data with the associated costs and burden. Indeed, I have seen case strategy driven by potential discovery costs (rather than the merits) and I think it is my responsibility, at least in part, to try to provide guidance from a technical perspective to reduce those costs and burden.
Earlier this year, Exterro (in coordination with BDO and Duke Law School) published a Judges Survey regarding how the federal bench views various areas of e-discovery, including proportionality. I always find this annual survey interesting because it provides insight into how I can better support my clients and case teams by guiding them in the ways of e-discovery technology. While the study indicates that more parties are making proportionality claims than in the past, judges largely feel the typical attorney lacks adequate technical subject matter knowledge needed to effectively counsel clients on e-discovery matters. (Note that the survey also addresses the dearth of legal subject matter knowledge when it comes to e-discovery, which I do not address here. I encourage you to take a look at my colleague’s article on proportionality from a legal standpoint, which can be found here). The technical subject matter knowledge, however, is an area where your e-discovery professional can assist.
Below I’ve included some tips and tricks of the trade that your e-discovery professional (whether that be a project manager, e-discovery attorney or other specialist) can offer to help you work towards that elusive notion of proportionality.
#1 Bring Your E-Discovery Professional to the Table
Include your e-discovery professional in your initial meet and confer with opposing counsel. In my experience, the courts want to see that there was an initial attempt at cooperation and an educated plan of attack for handling the volume of data involved in litigation. The e-discovery professional can provide guidance as to the helpful, even essential, technical methods needed for a targeted identification and collection of data, ensuring preservation of metadata and the critical chain of custody is maintained. We’ve probably all experienced the situation where it’s time to produce documents and the client realizes they do not have any idea why certain data is included and other is not. Most e-discovery professionals are inquisitive, detail-oriented and have impeccable reporting and tracking skills. Take advantage of their insight from the outset and you’ll reap invaluable rewards later on.
On a related note, if there is any chance that foreign data (whether that data is in the EU or China or elsewhere) may be in the mix, it is crucial that you include an e-discovery professional with knowledge of the intricate guidelines and protocols governing foreign discovery so that you can avoid future sanctions and penalties. Note that foreign data is an especially tricky subject and not all e-discovery professionals have the background and experience to provide guidance; be sure you are seeking counsel from someone who does.
#2 Phase Discovery
Phasing discovery is a relatively new phenomenon, most commonly found in patent litigation model orders, although it is making its way into more mainstream discovery processes. Phased discovery can include sequencing claims, custodians (in order of knowledge of relevant information) or data types (such as dealing with non-email first, followed by email collections and productions only if necessary). If the information obtained and received is analyzed from a cost and proportionality perspective, the later sequences may not be needed, ultimately narrowing the universe from which collection needs to occur. As part of phased discovery, consider limiting the number of custodians to a finite number such as 10; this forces the parties to consider who the most important players are and eliminate any that are included just for fluff.
Also, address at the outset data that may not be readily accessible, such as legacy systems or backup tapes. Consider whether mobile data is important or can be excluded altogether. An e-discovery professional can provide guidance on the accessibility of most data, the potential costs associated with any data that is not easily accessible and the most effective means of gathering data that will be sufficient in meeting discovery obligations.
#3 Develop ESI Protocols and Stipulations
Discuss upfront the specifics of review and production with opposing counsel. For example, if technology assisted review (such as predictive coding) may be employed, the e-discovery professional can provide a demo or additional education for opposing counsel or the court on the process and how it can legitimately reduce the amount of data requiring human review. As stated in the Exterro Survey, “More than 50% of the judges surveyed are essentially looking to the parties to provide the court with guidance about how to resolve problems and for advice on alternative remedies. Since most judges are not technically astute and lack the background to devise an appropriate resolution, they are relying on attorneys to alert the court about how to best use technology, such as assisted review tools and sampling techniques.”
It is also important to discuss the format of any production and what, if any, metadata should be included. In many federal courts (and even some state courts) you can find model ESI orders that can guide these discussions. However, all too often, the parties do not come to an agreement regarding format and fields and, as a result, re-collections, re-productions and data overlays are needed, which only serve to increase costs and delays.
#4 Develop Culling and Review Strategies
Discuss strategies for culling the data prior to review, including using search terms and date limitations. If these steps can be agreed on by both parties it can greatly reduce cost. An e-discovery professional can assist with recommendations such as:
Produce only the most inclusive emails: Through a technique known as email threading, you can eliminate the individual back and forth emails in a string and review/produce only the longest, most inclusive and complete emails. This technique can significantly reduce the number of emails to be reviewed and produced. One consideration with this strategy, however, is the format of the privilege log. For example, would only the top email in the string need to be included on the log or would every subsequent privileged email in the string also need to be included? You can discuss this point as well.
Sender Domain Parsing: Excluding all documents from specific public sites such as the New York Times or Bloomberg may be very helpful in the reduction of volume for review.
Search Terms: Agreeing on a set of valid search terms for the data will greatly reduce the review and production volume and increase the likelihood that the data produced is truly relevant to the claims at hand. An e-discovery professional can guide the refinement of those terms and provide sample reports of relevant term hit counts to opposing counsel or the court.
The Exterro Survey notes that “50% of the Judges … would like to see more metrics used to support proportionality arguments. Metrics can demonstrate how the data to be reviewed may be reduced, provide concrete support for the arguments that are being raised, and help the court understand the issues and fashion an appropriate remedy more easily.” An e-discovery professional should have access to all kinds of reporting and should be able to provide metrics regarding proportionality fairly easily.
#5 Best Practices
An e-discovery professional should be called upon to provide documentation and analysis for many aspects of the initial client and opposing counsel meetings as they can develop custodian logs, track the iterations of keyword negotiations and run gap analyses on data as it is processed, just to name a few.
I have found (and the Exterro survey agrees) that courts want the parties to make concerted efforts to reduce cost and have meaningful discussions related to e-discovery early on. Taking a team approach by including clients, attorneys and e-discovery professionals at the early stages of discovery may make all the difference.
 Exterro, 4th Annual Federal Judges Survey: Judicial Perspectives on the State of E-Discovery Law and Practice, at 15-16 (2018).