Legaltech Plenary: Facing the Cliff: Can Proportionality Avert the E-Discovery Crisis?

[Disclaimer: This post represents my sketchy paraphrase and comments on the content of the discussion. Any errors or omissions are my fault.]

Facing the Cliff: Can Proportionality Avert the eDiscovery Crisis?
Proportionality has been touted by industry cognoscenti as the bridge over the chasm of troubling eDiscovery disputes. Despite the hype, many doubt that proportionality can prevent courts, clients or counsel from plummeting into the abyss of spiraling costs and lengthy delays that often characterize discovery. For example:

Can predictive coding facilitate proportional discovery when lawyers are unwilling to share their training set of documents?
Should proportionality standards apply to the preservation of ESI to help address the high costs of retaining so much data?
Will the proportionality rule ever be used to rein in lawyers and judges that have distorted the standard of discovery from reasonableness to perfection?
Please join us as Philip Favro, Discovery Counsel, Symantec Corp. leads a distinguished panel of experts in a lively debate on these issues

Moderator:

Philip Favro,
Discovery Counsel,
Symantec Corp
Panelists:

Shawn Cheadle, Esq.,
General Counsel, Military Space,
Lockheed Martin Space Systems Co.

Hon. Frank Maas,
United States Magistrate Judge,
Southern District of New York

Ariana J. Tadler, Esq.,
Partner,
Milberg LLP

About half of the panels at Legaltech NY 2013 deal with e-discovery. Hardly any law schools offer courses in the subject. One of the things that makes it both fascinating and frustrating to teach is how little authority there is. Building on the recent amendments to the Federal Rules of Civil Procedure, almost all of the cases are federal district court opinions and, increasingly, state courts as well. The leading legal authorities on e-discovery are a handful of federal judges in the Southern District of New York–and The Sedona Conference, a private, non-profit organization of lawyers, judges, and technologists who have promulgated a series of influential papers, documents, and standards.

One of the areas of debate is over the importance of “proportionality.” FRCP 26(b)(2)(c) provides:

(C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that…

(iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.

The debate focuses on how heavily to weigh proportionality. Some cases emphasize it, but others ignore it. Utah has recently amended its rules to make proportionality “the hallmark of discovery.” Does Rule 26 need to be amended to better and more explicitly emphasize proportionality?

Defense counsel (Cheadle) tend to like to emphasize proportionality; plaintiffs (Tadler), not so much. Judge Maas is skeptical that adding the word “proportional” to the rule would add much difference; judges tend to focus on what seems fair to the clients under the circumstances.

“Does the widespread adoption of predictive coding depend on proportionality?” Traditional lawyers-read-all-the-documents review is expensive, error-prone, and time consuming. Predictive coding promises to reduce or eliminate the need for manual review; the question is whether lawyers and judges will trust it.

[Disclaimer: I am attending Legaltech thanks to a free blogger's pass, so read skeptically. All opinions are my own because nobody else would want them anyway.]

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