Proportionality in Ediscovery
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Proportionality in Ediscovery



By using proportionality in the litigation process and thereby the ediscovery process, in-house lawyers can achieve better outcomes for lower costs.

By using proportionality in the litigation process and thereby the ediscovery process, in-house lawyers can achieve better outcomes for lower costs.



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  • DM & KF:The inertia of the process WANTS to build Buckingham Palace – you need to be proactive to control this
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  • KF: Does proportionality come into play at Preservation level?

Proportionality in Ediscovery Proportionality in Ediscovery Presentation Transcript

  • Proportionality is The New Black
    David Martin ~ Medtronic Inc.
    VP & Senior Counsel Litigation
    Kelly Friedman ~ Davis LLP
    Partner; Chair of Sedona Canada
    Joshua Kubicki ~ Applied Discovery
    Sr. Director Corporate & Legal Services
  • What is Proportionality?
    “the just, speedy, and inexpensive
    determination of every action.”
    FRCP R. 1
    “the just, most expeditious and least expensive determination of every civil proceeding on its merits.”
    OntarioRules Civil Procedure R. 1.04
  • [
    Proportionality in the end serves the same purpose as “all you can eat” but achieves it through a more refined and moderate approach. It focuses on the end (merits) not the means (process).
    Buckingham Palace
    Single Family Home
  • Discovery Abuse
    45% said discovery is abused in almost every case
    ACTL & IAALS 2008 Survey:
    1500 Respondents - 50/50 split among Plaintiff & Defense counsel
    Lawyers rather than clients drive excessive discovery
  • What is “winning?”
    Zealous Advocacy – separating the practice of litigation from the process of litigation : a fine line between abuse of process and excessive tactics
    HHS Simon Brown (UK) ~ “We do not wear wigs and gowns at the case management conference because it is a business meeting . . . We are determining the most efficient and proportionate way of conducting the business of litigation.”
    Cooperation – Lawyers already practice cooperation and it is intertwined with proportionality. Settlement conversations, off the record conversations, depo scheduling, etc.
  • Why proportionality should matter to in-house counsel
    Corporations have been held to ransom – should not be forced to settle because the costs of discovery are exorbitant
    Whether a party is entitled to discovery is no longer governed solely by “any possibility” of relevance and the resources of the producing party
    Overall concept: discovery required/permitted is determined by a cost-benefit analysis, where benefits are ends of justice, not subjective benefits to a particular party
  • Where to Start:The Rules
  • FRCP 26(b)(2)  “Not reasonably accessible”
    FRCP 26(b)(2(B) Specific Limitations of Electronically Stored Information
    FRCP 26(b)(2)(C)(i)  "unreasonably cumulative or duplicative or from other source more convenient, less burdensome or less expensive“
    FRCP 26(b)(2)(C)(iii)  “burdenvs benefit”
    FRCP 26(f)(3) Discovery Plan
    FRCP 26(g)(i) Propounding or responding to conduct “proportionality analysis prior to sending discovery requests or objecting to requests"
    Proportionality in US
    Federal Rules of Civil Procedure
  • …and in Seventh Circuit Principle 1.03(Discovery Proportionality)
    “The proportionality standard set forth in Fed. R. Civ. P. 26(b)(2)(C) should be applied in each case when formulating a discovery plan. To further the application of the proportionality standard in discovery, requests for production of ESI and related responses should be reasonable targeted, clear, and as specific as practicable.” [Seventh Circuit Electronic Discovery Pilot Program, October 2009]
    Note:Phase Two of the pilot is expected to close on June 1, 2011 after having been run for a year; based on revisions to Phase 1.
  • Proportionality in CanadaOntario Rules of Civ. Pro, as illustrative example
    Guiding principle: “In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding” [Rule 1.1]
    Discovery plan – in writing, updated, shall consult the Sedona Canada Principles; if not, court may refuse relief/costs [Rule 29.1.03]
    (3) The discovery plan shall be in writing, and shall include,…
    (e) any other information intended to result in the expeditious and cost-effective completion of the discovery process in a manner that is proportionate to the importance and complexity of the action.
    (4)  In preparing the discovery plan, the parties shall consult and have regard to the document titled “The Sedona Canada Principles Addressing Electronic Discovery” developed by and available from The Sedona Conference.”
  • Ontario Rules cont.Proportionality in Discovery Rule
    29.2.03 (1) In making a determination as to whether a party or other person must answer a question or produce a document, the court shall consider whether,
    the time required for the party or other person to answer the question or produce the document would be unreasonable;
    (b) the expense associated with answering the question or producing the document would be unjustified;
    (c) requiring the party or other person to answer the question or produce the document would cause him or her undue prejudice;
    (d) requiring the party or other person to answer the question or produce the document would unduly interfere with the orderly progress of the action; and
    (e) the information or the document is readily available to the party requesting it from another source.
    Overall Volume of Documents
    (2) In addition to the considerations listed in subrule (1), in determining whether to order a party or other person to produce one or more documents, the court shall consider whether such an order would result in an excessive volume of documents required to be produced by the party or other person.
  • Why the concept may take hold in US
    Limitless Scope: Historically the scope of discovery has been expanded to include evidence that has “any possibility” of relevant data.
    Access to Trial: on average it is taking two years to get to trial
    Sanctions are on the increase as Judges become more educated on best practices and technology
  • Why the concept has taken hold in Canada
    Positive production obligation vs. specific document requests
    Loser pays rule vs. cost shifting
    Privilege and privacy protection
    Absence of Sanctions
  • US & Canada Commonality
    Expansion and complexity of ESI
    • Moore + Kryder = complex and voluminous data
    • The expanding digital universe will exceed 35 zettabytes by 2020, IDC predicts
    Costs – yes it is that simple
    Class Actions – growth in Canada
  • How to practice Proportionality:
  • Raise discovery disputes  BUT  engage in GOOD FAITH solution negotiation
    In negotiation terms/breadth of discovery most lawyers argue for everything because they simply do not know better or know what to ask for.
    Involvement of client in discovery negotiation is KEY
  • Not just a 1 time event
    The Proportionality Analysis is a continuing process throughout the discovery process and is law suit specific
    Starting the analysis at the beginning of a law suit may be too late.  Remember that the analysis is based upon the state of the records kept by the party. There is an underlying but unstated presumption that if the party kept the records the records must be business records and they must be important.
  • Action Steps
    It is not a question of argument.
    It is a question of ACTIONS based upon FACT.
    Guiding Principle:
    WHAT - Steps did the party take - -
    to preserve or to reasonably dispose of e data,  to select, to review to disclose
    WHEN -Did the actions or activities take place - -
    designed to  preserve or to reasonably dispose of or to select to review and disclose
    HOW - Did the party implement the action - -
    to preserve or to reasonably dispose of electronic data, to preserve and select and disclose
    WHY – this process and procedure - -
    in the identification of ESI to preserve or reasonably dispose, select and disclose data
    This analysis requires party specific information including analysis of business purpose of data, privacy and 3rd party protection issues, corporate culture considerations, and statutory provisions.
  • How to start:
  • Be PreparedE-discovery Cost Control begins before Litigation
    Proportionality argument requires understanding of company technology and internal practice ( Company Culture )
    Requires Fundamental understanding of both Plaintiff and Defendants theory of the case
    Requires clear and accurate cost estimate based upon facts and circumstances
    Know the Client
    Know the Data
    Know the Matter
    Know the Costs
  • Downstream Impact
    Evidence of disproportionate discovery OR what to consider given your unique situation in establishing your proportionality capability
    • Greater amounts of ESI equals greater cost for processing and review
    • Increased potential of liability exposure (priv & confidential info)
    • Potential delays due to technical or volume challenges
    • Business interruption for multiple collections and/or interviews
    • Data sequestered outside or normal retention schedules
  • What to use:
  • Examples
    thoughtful, reasonable, and good faith preservation
    Phased-Discovery – learn as you go
    most easily identifying relevant sources first
    Engage opposing counsel
    early (and often) to determine a discovery plan (what do I need to preserve?)
    where the amount of data or costs is burdensome – to determine likelihood of case determinant information
    Technology IQ
    understand technology enough to not only understand your own capabilities so as to understand real costs BUT this IQ may inform you as to opposing counsel’s capabilities
  • US Adoption:
  • Are U.S. judges (finally) embracing proportionality?
    Tamburo v. Dworkin, 2010 WL 487346 (N.D. Ill. Nov. 17, 2010)
    Rimkus Consulting Group, Inc. v. Cammarata, 688 F. Supp. 2d 598 (S.D. Tex. 2010)
    Bellinger v. Astrue, 2010 WL 1268063 (E.D.N.Y. April 2, 2010)
    Mancia v. Mayflower Textile Servs. Co., 253 FRD 354 (E.Md. 2008)
    Orbit One Communications, Inc. v. Numerex Corp., 692 F. Supp. 2d 373 (S.D.N.Y. 2010)
    Pension Committee of the University of Montreal Pension Fund v. Banc of America Securities, 2010 U.S. Dist. LEXIS 4546 (SDNY January 15, 2010)
  • Further proportionality resources
    Wealth of resources on, including The Sedona Conference® Commentaries (Canada and US versions) on Proportionality (Oct. 2010)
    John L. Carroll, Proportionality in Discovery: A Cautionary Tale, 32 Campbell L. Rev. 455 (2010)
    Final Report of the Joint Project of The American College of Trial Lawyers Task Force on Discovery and The Institute for the Advancement of the American Legal System, March 11, 2009 (