Welcome to Module 3-T.
This class presents a summary, analysis, and Ralph’s personal editorial comments on the 2015 Amendments to the Federal Rules of Civil Procedure on electronic discovery. The new rules went into effect on December 1st, 2015.
Overall the new Rules are helpful, especially to newbies, but hardly the godsend that many hope for. Aside from questions of form and wording, the amendments had very little impact on my legal practice. But that is only because the doctrines of proportionality and cooperation that the Amendments incorporate were already well-established in my firm. Many experienced attorneys say the same thing. The rule changes do, however, make it substantially easier to explain our positions to opposing counsel, and the court.
The 2015 rule amendments were not designed for experts. They were written for the vast majority of U.S. lawyers who are still struggling to do discovery in the modern age. Our profession remains embarrassingly computer challenged, so these rules are a necessary and good thing.
My only regret is that new Rule 37(e) may make it a little more difficult to catch and punish the few bad guys out there who try to cheat by destroying evidence. Still, we will get them. Fraudsters are never as smart as they think they are. When judges get the drift of what is happening, they will work around vagaries in new Rule 37(e) and send them packing. I am not overly concerned about that. Experienced federal judges can sniff out fraud a mile away and they do not hesitate to sanction bad faith attempts to game the system. We have defeated plenty of spoliating plaintiffs under the old rules and I am confident we will continue to do so under the new. The protests of some commentators on this issue seem a bit over-stated to me, although I do agree that the wording of new Rule 37(e) leaves much to be desired.
An Overly-Hard-Fought Victory for Proportionality
The 2015 FRCP Rules Amendments were the most politicized and hard-fought in history. E-Discovery was the focus of all the battles. (Other changes are not-controversial and, not really that important, and will not be addressed here.) Large corporate and Plaintiffs attorney groups lobbied the supposedly independent Rules Committee for years. The well-funded defense Bar largely won, but the plaintiffs’ Bar still retained some bite and won several small victories. It was classic lobbying at its worst by both sides.
The Rules Committee should never have let itself get sucked into that kind of politics. They meant well, I’m sure, but they ended up with way too many conferences and bickering everywhere you looked. I personally got sick of it and cut way down on my schedule. I even quit one well-known group that allowed this infection to spoil its true purpose. Sad, but life is short. It is full of choices on what to do and who to do it with. I decided not to waste my time with silly games, nor watch the fall of a once great dynasty. I am consoled by the words of Churchill: “History will be kind to me for I intend to write it.”
Bottom line, partisan politics for court rule making must end with these 2015 Amendments. The judiciary and Rules Committee should be above politics. Make all of your meetings closed-door if you have to, but stop the circus. Hang your heads and learn from what happened.
As a result of the contentiousness of the proceedings, the final wording of most of the rules represent sausage making at its worst. The language is just filled with compromises. Years of interpretation litigation are assured. Maybe that can never be avoided, but certainly a better job could have been done by scholars working above the fray.
Proportionality Doctrine and the Beginning of the Goldilocks Era
In spite of the sordid background two high-minded themes emerged, much like flowers growing out of manure. The primary theme of all of the Amendments is clearly Proportionality. The secondary theme is an attempt to further attorney Cooperation by communication. Two doctrines promoted by the late, great founder of The Sedona Conference, Richard Braman.
The victory of proportionality proponents, myself included, may well usher in a new Goldilocks era for the Bar. Everyone who bothers to read the rules will know that they must look for discovery that is not too big, and not too small, but is just right. The just right Goldilocks zone of permitted discovery will balance out well-worn considerations, including costs, which are outlined by the rules.
This is not really new, of course. Old Rule 26(b)(2)(C) had the same intent for decades to avoid undue burden, by balance with benefits. But at least now the proportionality concerns to avoid undue expenses for discovery are up front and center to all discovery disputes. This forces judges to be more cost-conscious, and not allow liberal discovery, regardless of costs, delays and other burdens.
I have been promoting the proportionality doctrine at the heart of these amendments since at least 2010. So too did Richard Braman and his Sedona Conference. I recommend to you their latest version of the Commentary on Proportionality in Electronic Discovery (2013) that can be downloaded without cost at https://thesedonaconference.org/download-pub/1778.
For some of my articles on or featuring proportionality, please see:
Some contend that the changes in the rules embodying proportionality will make a big difference. Many long-term observers say that there are no real changes at all. It is just window dressing. So nothing will change. I think a “just right” Goldilocks type analysis suggests that the truth is somewhere in the middle, but inclined towards the “little change” side. See: Losey, R., One Man’s Trash is Another Man’s Evidence: Why We Don’t Need New Rules, We Need Understanding, Diligence, and Enforcement of Existing Rules (e-Discovery Team, 9/6/11) (criticizing the drive to solve the problems of e-discovery by just adding more rules, and suggesting instead that education and enforcement of existing rules were a better response).
Still, although a small change, and a sausage-like one at that, it is an important change. It should help all fair-minded attorneys to better serve their clients by protecting them from undue burdens in discovery, and also from undue burdens in preservation.
We will all be arguing about the Goldilocks Zone now, where the burden is just right, is proportional, considering the criteria stated in the rules and the facts of the case. One size fits all is a thing of the past, especially when the one size is save everything and produce everything. Papa Bear’s big chair is way too large for most cases. And, small chair or not, every litigant is entitled to a seat at the discovery table, even a trespasser like Goldilocks.
New Rule 26(b)(1) – Discovery Scope and Limits
Here is the new language of 26(b)(1) which serves as the key provision in the 2015 Amendments implementing proportionality. Note that I have added the bullet-points here for clarity of reference and the bold. The original rules are, as usual, just one long run-on sentence.
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, considering the
Information within this scope of discovery need not be admissible in evidence to be discoverable.
The first big change to 26(b)(1) is not seen here because it is an omission. The scope is now limited to “any party’s claim or defense.” Previously a court could expand relevance scope to “SUBJECT MATTER” of the case, not just specific claims. This expansion was supposed to require a good cause showing, but, in practice, this condition was given little weight by judges and poorly understood by the Bar. Full subject matter discovery was commonly allowed with little or no real showing of cause. Often responding parties would simply capitulate and not demand a good cause showing. This could, in my experience, often lead to greatly expanded discovery. Now relevance cannot be expanded beyond actual claims made. This is a big improvement.
I am proud to say that this is a revision that I suggested to the Committee for adoption. I accomplished this without lobbying. My one direct conservation with the big-name Committee chair at a Bar event was about two minutes long. I outlined the idea and suggested the Committee at least consider it. The elevator-speech proposal was instantly rebuffed by her. She smiled and said that had been considered many times before over the years and simply was not “politically doable.” Silly me, to resurrect such an old, stale idea.
Still, I had a beginners mind on rule changes. I was convinced we needed to tighten the spigot of relevance to help counter-act the information deluge. I updated my prior blog on the proposal, added some more legal citations and analysis to make it more scholarly, and put forth my best argument. Rethinking Relevancy: A Call to Change the Rules to Narrow the Scope of ESI Relevance (e-Discovery Team, 1/24/2011). That’s it. I wrote a 3,700 word article. Nothing more. I knew the Committee would at least know about the article, and maybe some would read it, as I knew that some of them were regular readers.
Since the proposal had merit, as far as I was concerned, that was all that was required. No politics. No lobbying, just one chat where the chair said no-way, and then submission of an article making my case for elimination of “subject matter” discovery. In my case that was all that was necessary. It worked. That is how it should work. I was actually completely surprised to see the elimination of the old subject matter provisions when an early draft was published by the Rule Committee. All the Committee Note says about this change is as follows:
The amendment deletes the former provision authorizing the court, for good cause, to order discovery of any matter relevant to the subject matter involved in the action. Proportional discovery relevant to any party’s claim or defense suffices. Such discovery may support amendment of the pleadings to add a new claim or defense that affects the scope of discovery.
The attention and politics of the Committee was focused on the new wording added to Rule 26(b)(1), which outlined the six criteria to consider to determine proportionality:
Not sure why this was such a big deal for them because in fact none of this language is new at all. All the Committee ended up doing was use the exact same language that appeared in Rule 26(b)(2)(C) and then add the parties’ relative access to relevant information. This last addition was a last minute addition. All it does is add the accessibility provision already in Rule 26(b)(2)(B) that was added in the 2006 Amendments. You would think the Committee would improve upon the language more to give the Bench and Bar more guidance. Still, the importance of the proportionality requirement is intended to be elevated by this move to the defined scope of relevance section, the section where discoverability is limited to information that is proportional to the needs of the case.
Here is the Committee Note explaining their revision, one that many now seize upon as some bold godsend:
The considerations that bear on proportionality are moved from present Rule 26(b)(2)(C)(iii). Although the considerations are familiar, and have measured the court’s duty to limit the frequency or extent of discovery, the change incorporates them into the scope of discovery that must be observed by the parties without court order.
Dear Committee, they are more than just familiar as your Note says, they are exactly the same! Please. Many had hoped for more, myself included. Oh well, what do you expect from political sausage?
In any in-person presentation of these rules I would now go through how these four factors play into discovery in various types of cases. In my firm I discourse at length on how this plays out in employment cases.
There is really nothing new here except the third point about relative access, and, in my opinion, that last minute addition by the Committee adds nothing. It was already in 26(b)(2)(B). I have been applying these factors and analysis for over thirty-five years. I have been calling it proportionality for over five years.
In most cases, but certainly not all, the main factor that comes into play is expense. Does the burden or expense of the proposed discovery outweighs its likely benefit? And what is the real, non-inflated, amount in controversy? The main change the proportionality labeled rules now force is a shift in thinking, to try to get the Bench and Bar to look at discovery as the tradeoff that it has always been, to try to get everyone thinking proportionally.
The final relevant change to 26(b)(1) already seems to be widely misunderstood by the Bar, namely the rewording of provisions in the rule pertaining to discovery and admissibility. The old rule, which many lawyers disliked for good reason, said: “Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” It is true that this sentence was deleted, but it is not true that discovery is limited to admissible evidence. I have already seen at least one CLE, sponsored by the ABA no less, that incorrectly states that the old standard is dead. It is not. Weakened perhaps, but not gone. Remember, we are dealing with politics again and compromise language. The Plaintiffs’ Bar managed to keep the idea alive, but the sentence was modified and its placement shuffled. Rule 26(b)(1) still says:
Information within this scope of discovery need not be admissible in evidence to be discoverable.
Here is how the Committee Note explains this revision:
The former provision for discovery of relevant but inadmissible information that appears reasonably calculated to lead to the discovery of admissible evidence is also amended. Discovery of nonprivileged information not admissible in evidence remains available so long as it is otherwise within the scope of discovery. Hearsay is a common illustration. The qualifying phrase — “if the discovery appears reasonably calculated to lead to the discovery of admissible evidence” — is omitted. Discovery of inadmissible information is limited to matter that is otherwise within the scope of discovery, namely that which is relevant to a party’s claim or defense and proportional to the needs of the case. The discovery of inadmissible evidence should not extend beyond the permissible scope of discovery simply because it is “reasonably calculated” to lead to the discovery of admissible evidence.
I predict that we will be litigating that oh so subtle distinction for years. It remains to be seen what the Magistrates who usually rule of such issues will make of this change. It also remains to be seen what the practical impact of this change will be. I think that the “claims made” versus “subject matter of the litigation” change will have a far greater impact.
What is a Proportional Spend on e-Discovery?
Assuming that monetary factors are the primary considerations in a case, how much should be spent on electronic discovery? Do not just brush the question aside by saying every case is different. They are many similarities too. The longer you practice the more aware you become of the recurring patterns. What I want the Bench and Bar to do is start thinking proportionally. To start thinking from an over-all budgetary perspective.
Consider this hypothetical, one where all other factors being equal, money was the primary criteria to evaluate proportionality.
Where am I getting these numbers?
In part I am getting these dollar amounts from my 35 years of experience as an attorney in private practice handling a wide variety of commercial litigation vases, mainly large ones, but also many smaller cases too, and lately including many, many employment law cases.
These numbers may not hold true in single plaintiff discrimination cases, or other small matters. But there may be some general truth here. You can see that from the fact that most Bar associations allow 40% recovery for fees in contingency cases. That compares to the 38% proportional expense assumed here: $381,966 in total fees and costs for a million dollar case (remember, assume true settlement value here, after weighing and discounting risks, not b.s. positions or demands). What do you think? Is approximately 38% of the true case value a proportional total expense in complex litigation? Does 38% seem appropriate? Too high, too low? What do you think is a proportional percentage? Please leave your comments below or send me a private email.
What about my assumption of a total cost for all discovery of $145,147 in a case where total fees are $381,966. Is it reasonable, proportional, to assume a spend of $145,147 for discovery of all types, including e-discovery? That represents around 14.6% of the total amount in controversy. Is that number too low? Too high?
Is it proportional to assume a spend of around 5.6% of the total amount in controversy for all e-discovery related activities in a case? Under this million dollar scenario that would be $55,157. Again, what do you think? And a different but related question, what has your experience been?
Now consider the bigger question, does a general metric for Proportionality of expenditures to true case value make sense in the law? Be it 38% or whatever?
Assuming it makes sense to talk of a general ratio for proportionality: Is the 6% of the total value of a case a reasonable amount for a party to pay for ESI discovery alone? If not, higher or lower? What ranges are you seeing in practice? I am seeing a wide variety, but I think that is because we are still in an early stage of maturity, and that it will eventually settle down into a pattern.
Did you know that Intel has gone on record many times as reporting that its e-Discovery spend in large cases averages 80% of its total spend for cost of defense? Since Intel says an average of 80% of its total litigation cost go to e-Discovery, if they spent $400,000 to defend a $1 Million case, that would be a spend of $320,000 on e-discovery, which is 32% of total case value, not 6%. Does this seem fair? Appropriate? Proportional?
I can see patterns and costs ranges, but at the same time I see outliers in cost, especially on the high-end. In my experience these are usually due to external factors such as extreme belligerence by one side or the other, attorney personality disorders, or intense spoliation issues. Sometimes it just may have to do with information management issues. But if you discount the low and high outliers a pattern starts to emerge. Hopefully someday an objective, systematic study will be done. My observations so far are just ad hoc.
Might the Golden Ratio Help Us to Navigate the Goldilocks Zone?
Aside from my long experience with what lawsuits cost, and the experience of others, the primary source of my hypothetical numbers here is from a famous ratio in math and art known as the Golden Ratio or Golden Mean: 1.61803399 to 1.0.
I came up with the numbers in the hypothetical by use of this ratio:
$1,000,000 – $381,966 (38%) – $145,147 (14.6%) – $55,1567 (5.6%)
These numbers are progressively smaller by .3819661%, and in this manner follows the proportion of the Golden Ratio.
The Golden Ratio is mathematically defined as the division where a+b is to a, as a is to b, as shown below. In other words, “two quantities are in the golden ratio if the ratio of the sum of the quantities to the larger quantity is equal to the ratio of the larger quantity to the smaller one.”
In Math this is known as PHI – Φ.
It does not matter if the math confuses you, just know that this proportion has been considered the perfect ratio to evoke feelings of beauty and contentment for thousands of years. It is well-known in all of the Arts, including especially Painting, Music and Architecture. It is the division that feels right, seems beautiful, and creates a deep intuitive sense of perfect division. It still does. Just look at the designs of most Apple products. This ratio is also found everywhere in nature, including the human body and structure of galaxies. It seems to be hardwired into our brains and all of nature.
I put together the two videos below to illustrate what I mean. There is far more to this than a math trick. The Golden Ratio seems to embody a basic truth. Every educated person should at least be familiar with this interesting phenomenon.
Perhaps the idea of perfect proportionality in art, math and science may also apply to law? Maybe it is a basic component of human reasonability and fairness? What do you think?
After giving a presentation much like this at a CLE I asked the question of whether the Golden Ratio in art, math and science might also apply to the law? I wanted to know what everyone thought and to get some interaction going. It was a daylong conference sponsored by Capital One and dedicated solely to the topic of Proportionality. Maura Grossman and I co-chaired the event in the Fall of 2010, when the doctrine was still new. Everyone had a clicker and answered yes or no to the question.
There was an eerie silence in the large auditorium after the results were quickly tabulated and shown on screen. Do you know what the proportion of yes and no answers were? 38% said NO, and 62% said Yes. The Golden Ratio came though in the opinion of the 200 or so attorneys and judges in attendance. You cannot make this stuff up. At first I thought maybe the boys in the tech booth were messing with me, but no. It was automatic and they were not paying attention. It was real. It was beautiful.
Ask Judge Facciola about it sometime. He was there and right after my opening spoke of the Golden Ratio as used in music. I remember he played an example from Bach. Judge Peck, Judge Mass and Judge Hedges were also there. So too was Judge Grimm, but by video appearance. Jason Baron, Conor Crowley, and Patrick Oot were also in attendance. So, I have a lot of witnesses to confirm what happened. It was a landmark event in many ways. One I will never forget for a whole host of reasons.
A natural ratio clearly exists for proportionality in nature, art and math. I am not saying that this 38/62 ratio, 1.61803399, should apply in the law too as a general guide for proportionality. But it might. It is at least something to think about. What do you think? Again, let me know.
FYI, I have written about this before with several examples, but never before described the Capital One conference and spooky Golden Ratio vote. My Basic Plan for Document Reviews: The “Bottom Line Driven” Approach (see especially footnote 15 and supporting text where I compare this drill-down proportionality analysis to Russian nesting dolls).
Change to Rule 37(e)
Rule 37(e) was completely rewritten and was the focus of most of the politics. That explains why the wording is such a mess. The Sedona Conference recommendations on how to revise the rules were largely ignored.
A large part of the politics here, from what I could see, was to counter-act Judge Shira Scheindlin (and a few other powerful judges, mostly in SDNY) who interpreted 2nd Circuit law to assert their right to impose case dispositive sanctions on the basis of gross-negligence alone. See: Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, 685 F.Supp.2d 456, 465 (S.D.N.Y.2010). Many in the defense Bar argued that there was a dangerous conflict in the Circuits, but since any large company can get sued in New York City, the SDNY views took practical priority over all conflicting views. They complained that the SDNY outlier views forced large corporations to over-preserve is a disproportionate manner.
Naturally Judge Scheindlin opposed these revisions and vigorously articulated the need to protect the judicial system from fraudsters. She proposed alternative language. The plaintiffs Bar stood behind her, but they lost. Sedona tried to moderate and failed for reasons I would rather not go into.
Other Circuits outside of New York make clear that case dispositive sanctions should only be imposed if INTENTIONAL or BAD FAITH destruction of evidence was proven. Many defense Bar types thought that this distinction with GROSS NEGLIGENCE was a big deal. So they fought hard and now pat themselves on the back. I think their celebration is overblown.
I personally do not think the difference between Bad Faith and Gross Negligence is all that meaningful in practice. For that reason I do not think that this rule change will have a big impact. Still, it is likely to make it somewhat easier for parties accused of spoliation to defend themselves and avoid sanctions, especially strong sanctions. If you think this is a good thing, then celebrate away. I don’t. The reality is this revision may well harm parties on both sides of the v., defendants and plaintiffs alike. I know we now see many Plaintiffs destroying evidence, especially cloud emails and Facebook posts. I expect they will rely upon this rule change to try to get away with it.
We will be litigating these issues for years, but as mentioned, I have faith in our federal judiciary. No matter what the rules, if they sniff out fraud, they will take appropriate action. The exact wording of the rules will not matter much. What was once labeled gross negligence will now be called bad faith. These concepts are so flexible and the entire pursuit of fraud like this is very fact intensive.
I think the best thing to do at this point is all of Rule 37(e) in full, as it bears repetitive reading:
If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:
(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or
(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:
(A) presume that the lost information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
I could talk up each paragraph, but this article is already overly long. I only pause to note how the rule now makes proportionality expressly relevant to preservation for the first time. Before this change our primary authority was the Order of the former Rules Committee chair, Judge Lee Rosenthal. Rimkus v Cammarata, 688 F. Supp. 2d 598 (S.D. Tex. 2010):
Whether preservation or discovery conduct is acceptable in a case depends on what is reasonable, and that in turn depends on whether what was done – or not done – was proportional to that case and consistent with clearly established applicable standards.
I strongly recommend that you read the extensive Committee Note that tries to explain this rule. The Notes can be cited and are often found to be persuasive, although, of course, never technically binding authority. Still, until we have case law on Rule 37(e), the Notes will be very important.
Minor Changes to Rules 26 & 34
Under Modified Rule 26(d)(2) a Request to Produce can be served anytime AFTER 21 days from the service of process. You do not have to wait for the 26(f) conference. Under Modified Rule 34(b)(2)(A) a response to an early RFP is not due until 30 days after the parties’ first Rule 26(f) conference. This early service change was designed to encourage meaningful ESI discussion at 26(f) meet and greets.
Rule 34(b)(2)(B) was modified to require specific objections to request categories and “state whether any responsive materials are being withheld on the basis of that objection.” No duh, right? Yet I have seen this time and again, an objection is stated where no documents exist to begin with. Why?
Rule 26(f) was modified to include discussion of preservation, but also to include discussion of Evidence Rule 502 – Clawback Orders.
Change to Rule 16(b)
Scheduling Order may …
(iv) “… include any “agreements reached under Federal Rule of Evidence 502.”
(v) “direct that before moving for an order relating to discovery, the movant must request a conference with the court.”
Everyone is encouraged to entered into clawback agreements and 502(d) orders.
Change to Rule 1: An Already Great, But Underused Rule, Is Now Even Better
I saved the best rule change for last, the change to Rule 1.0. Judge Waxse, the great promoter of Rule 1.0, should be happy (he often is anyway). Rule 1.0 FRCP – the JUST, SPEEDY AND INEXPENSIVE rule – is one of the most important rules in the book and yet, at the same time, one of the most overlooked and under-cited. All of the e-discovery knowledgable judges, not just David Waxse, can and do wax on and on about this rule.
The 2015 Amendments are designed to further strengthen this important rule. Rule 1 has long required judges to “construe and administer” all of the other rules in such a way as to not only secure “justice,” as you would expect, but also to secure “speedy and inexpensive” determinations. Surprised?
This dictate has long been an important policy for rule construction. It has been helpful to those who used it to oppose expensive, burdensome e-discovery. Nothing drives up expense more than “discovery about discovery” or detours into whether efforts to preserve, search or produce ESI have been extensive enough. Courts may allow this kind of expensive discovery if justice requires it, but only after balancing the other two equally important considerations of speed and expense. Here we have another proportionality analysis, one that applies indirectly to every other rule in the book.
The 2015 Amendments enlarged and strengthened the “just, speedy and inexpensive” dictates by making it clear that this duty not only applies to the court, the judges, but also to the parties and their attorneys. Moreover, the revised rule not only requires judges and parties to construe and administer the rules to attain just, speedy and inexpensive determinations, it also requires them to employ all of the other rules in this manner. The revised rule 1.0 reads as follows (new language in bold):
They (all of the rules) should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.
These revisions squarely place the burden of efficient litigation upon counsel, as well as the court. It is now a clear rule violation for an attorney to demand justice, no matter what it costs or how long it takes. All three criteria must be considered and implemented.
The Rule 1.0 change perfectly frames all of the other 2015 Amendments on proportionality and cooperation in ESI discovery and preservation. As the Rules Committee Commentary to the Rule 1.0 amendments explains:
Most lawyers and parties cooperate to achieve these ends. But discussions of ways to improve the administration of civil justice regularly include pleas to discourage overuse, misuse, and abuse of procedural tools that increase cost and result in delay. Effective advocacy is consistent with — and indeed depends upon — cooperative and proportional use of procedure.”
Rule 1.0 now stands as powerful shield to oppose any counsel’s improper use of discovery as a weapon. Cost and delay must always be taken into consideration. Every motion for protective order should begin with a recitation to Rule One.
Update all of your discovery briefs and forms to incorporate the 2015 rules. Think proportional and act proportional. Sherlock Holmes was famous for his 7% solution, try mixing up your own 5.6% solution. That would be a big change, wouldn’t it, to only spend $5,600 total on e-Discovery in a $100,000 case? Try to come up with an overall budget. Figure out what you think is proportional to the case. Do not wait to respond to excessive demands. Be proactive. How many custodians are proportional? What is an appropriate date range? What ESI is really important and necessary to the case? How many files need be reviewed under a realistic cost-benefit analysis? What are the benefits? The burdens?
Talk about true case value with opposing counsel. Never bad mouth your client, but be honest. Get beyond the b.s. and posturing that does nothing but cause delay and expense. That is the only way your proportionality discussions will get real. The only way the judge will ever see things your way.
Other side won’t cooperate? Dealing with inept phonies? Have these discussions with the judge. Ask for a 16(b) conference to work out disagreements that surface in the 26(f) conference. Most judges have a pretty good feel for what certain kinds of cases are usually worth. Have the wake-up call early and try to save your client money. Analyze and argue benefit/burden. Also, be real and do not exaggerate what your e-discovery expenses will be. Back up your estimates with realistic numbers. Get vendors or specialists to help you.
All of this means that you must front-end your e-discovery work. It should come right after the retainer clears. The new Rule 37(e) is not a free pass to let up on preservation efforts or data collection. Find out what your problems are, if any, and talk about them asap. Bring them to the attention of the judge. Show that you are in good faith. The law never demands perfection, but does demand honest, reasonable efforts.
Make your discovery plan early. What do you want the other side to produce? Be specific. Have concrete discussions at the 26(f). The judges are getting fed up with drive-by meet and greets. It is dangerous to put off these discussions. Arrive at a fair balance between risk mitigation and cost control and move things along counsel. Speed counts, right up there with expense and justice. Your clients will appreciate that too.
Use honesty and diligence to navigate your way to the Goldilocks zone. Steer with realistic analysis. Be driven not only by the desire for justice, but also for quickness and sparse expense. Learn the new analytics, the new language and concepts of proportion. Master these new rules, as well as the e-discovery rules that remain from the 2006 Amendments, and you will prosper in the new Goldilocks Era.
SUPPLEMENTAL READING: Find and review at least one article that includes a discussion of the 2015 Rule Amendments.
EXERCISE: Think about what proportionality and the ideal of a just balance. What arguments can you make for a low spend, low ratio, and for the opposite, high spend, high ratio. As another exercise, consider carefully the six proportionality factors in 26(b)(1):
What other factors might be persuasive to a judge, or opposing counsel, even though not on this list.
Students are invited to leave a public comment below. Insights that might help other students are especially welcome. Let’s collaborate!
Copyright Ralph Losey 2017