Welcome to Module 3-H.

The Importance of Proportionality to Electronic Discovery.

Proportionality is more than just a legal doctrine that must be learned, it is a perspective. The e-discovery activities required in a big case are disproportionately burdensome in a small case. But which ones? Ah, that’s the key trick to successful lawyering. As a student of electronic discovery you must teach yourself to see all problems through this lens of Small, Medium of Large? This is so important that we will spend the entire next class playing a proportionality game where a checklist of e-discovery activities are divided into these three categories. But for now we need to learn more about the law. Only then will we be prepared to play the game and begin to think proportionately.

Learning to Think Proportionality

Every judge who has ever struggled with discovery issues wishes that the lawyers involved had a better understanding of proportionality, that they had spent more time really thinking about how it applies to the requisites of their case. So too does every lawyer who, like me, specializes in electronic discovery. As Chief Justice Roberts explained in his 2015 Year-End Report on the Federal Judiciary on the new rules on proportionality:

The amended rule states, as a fundamental principle, that lawyers must size and shape their discovery requests to the requisites of a case. Specifically, the pretrial process must provide parties with efficient access to what is needed to prove a claim or defense, but eliminate unnecessary or wasteful discovery. The key here is careful and realistic assessment of actual need.

Proportionality and reasonableness arise from conscious efforts to realistically assess actual need. What is the right balance in a particular situation? What are the actual benefits and burdens involved? How can you size and shape your discovery requests to the requisites of a case?

There is more to proportionality than knowing the rules and case law, although they are a good place to start. Proportionality is a deep subject and deserves more than black letter law treatment. See the upcoming Class 3-T on the 2015 Rule Amendments (wherein we discuss proportionality, the Golden Ratio or perfect proportionality, aka Φ, which is shown in this graphic and much more, including the spooky “coincidence” at a CLE with Losey and Judge Facciola and the audience vote). Also see: Giulio Tononi, Phi Φ, a Voyage from the Brain to the Soul (Pantheon Books, 2012) (another take on Phi Φ).

We want everyone in the field to think about proportionality. To be conscious of it, not just have information about it. What does proportionality really mean? How does it apply to the e-discovery tasks that you carry out every day? How much is enough? Too much? Too burdensome? Too little? Not enough? Why?

What is a reasonable effort? How do you know? Is there perfect proportionality? One that expresses itself in varying ways according to the facts and circumstances? Does Law follow Art? Is Law an Art? Or is it a Science? Is there Beauty in Law? In Reason? There is more to proportionality than meets the eye. Or is there?

Getting people to think about proportionality is one of the reasons we created the proportionality game that we will play in the next class, and that Losey plays in CLEs around the country.

This class, and the next, tries to get students to think about proportionality and the requisites of their case. What discovery activities required in a Big Case are not necessary in a Small Case, or even a Medium Sized case? That is what requires thought and is the basis of the game.

Rules of Federal Procedure

Proportionality is key to all discovery, to knowing the appropriate size and shape of discovery requests in order to fit the requisites of a case. Reading the rules that embody the doctrine of proportionality is a good start, but just a start. The primary rule to understand is how proportionality effects the scope of relevance as set forth in Rule 26(b)(1), FRCP:

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 importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

But you also need to understand how it impacts a lawyer’s overall duty to supervise a discovery request and response as set forth in Rule 26(g). See Rule 26(g)(1)(B)(iii), FRCP:

neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.

Many other rules have concepts of proportionality either expressly or implicitly built in, including Rule 26(b)(2)(B) (not reasonably accessible); Rule 26(b)(2)(C)(i) (cumulative); Rule 1 (just, speedy and inexpensive), Rule 34, Rule 37(e), Rule 45.

Case Law

Reading the key cases is also a help, indispensable really, but reading what the judges say is not enough either. Still you need to keep up with the fast growing case law on proportionality. See for instance the fine collection by K&L Gates at: https://www.ediscoverylaw.com/?s=proportionality and the must-read, The Sedona Conference Commentary on Proportionality_May 2017. Here a few of my favorites cases:

  • In re Bard IVC Filters Prods. Liab. Litig., D. Ariz., No. MDL 15-02641-PHX DGC, 2016 U.S. Dist. LEXIS 126448 (D. Ariz. Sept. 16, 2016). In this must-read opinion District Judge David G. Campbell, who was the chair of the Rules Committee when the 2015 amendments were passed, takes both lawyers and judges to task for not following the new rules on proportionality. He then lays it all out in a definitive manner.
  • In re Takata Airbag Prods. Liab. Litig., No. 15-02599-CIV-Moreno, MDL No. 5-2599 (S.D. Fla. Mar. 1, 2016). Judge Moreno quotes Chief Justice Roberts’ comments in the 2015 Year-End Report that the newly amended Fed.R.Civ.Pro. 26 “crystalizes the concept of reasonable limits in discovery through increased reliance on the common-sense concept of proportionality.2015 Year-End Report on the Federal Judiciary.
  • Hyles v. New York City, No. 10 Civ. 3119 (AT)(AJP), 2016 WL 4077114 (S.D.N.Y. Aug. 1, 2016) (Judge Peck: “While Hyles may well be correct that production using keywords may not be as complete as it would be if TAR were used, the standard is not perfection, or using the “best” tool, but whether the search results are reasonable and proportional. Cf. Fed. R. Civ. P. 26(g)(1)(B)”)
  • Johnson v Serenity Transportation, Case No. 15-cv-02004-JSC (N.D. Cal. October 28, 2016) (“… a defendant does not have discretion to decide to withhold relevant, responsive documents absent some showing that producing the document is not proportional to the needs of the case.”)
  • Apple Inc. v. Samsung Elecs. Co., No. 12-CV-0630-LHK (PSG), 2013 WL 4426512, 2013 U.S. Dist. LEXIS 116493 (N.D. Cal. Aug. 14, 2013) (“But there is an additional, more persuasive reason to limit Apple’s production — the court is required to limit discovery if “the burden or expense of the proposed discovery outweighs its likely benefit.” This is the essence of proportionality — an all-to-often ignored discovery principle. Because the parties have already submitted their expert damages reports, the financial documents would be of limited value to Samsung at this point. Although counsel was not able to shed light on exactly what was done, Samsung’s experts were clearly somehow able to apportion the worldwide, product line inclusive data to estimate U.S. and product-specific damages. It seems, well, senseless to require Apple to go to great lengths to produce data that Samsung is able to do without. This the court will not do.)
  • PTSI, Inc. v. Haley, 2013 WL 2285109 (Pa. Super. Ct. May 24, 2013) (“… it is unreasonable to expect parties to take every conceivable step to preserve all potentially relevant data.”)
  • Kleen Products, LLC, et al. v. Packaging Corp. of Amer., et al., Case: 1:10-cv-05711, Document #412 (ND, Ill., Sept. 28, 2012).

Sedona Commentary

The Sedona Conference Commentary on Proportionality_May 2017 is more than a collection of case law. It includes commentary hashed out between competing camps over many years. The latest 2017 version includes Six Principles that are worthy of study. They can certainly help you in your own analysis of proportionality. The cited case law in the Commentary is structured around these six principles.

THE SEDONA CONFERENCE PRINCIPLES OF PROPORTIONALITY

Principle 1: The burdens and costs of preserving relevant electronically stored information should be weighed against the potential value and uniqueness of the information when determining the appropriate scope of preservation.

Principle 2: Discovery should focus on the needs of the case and generally be obtained from the most convenient, least burdensome, and least expensive sources.

Principle 3: Undue burden, expense, or delay resulting from a party’s action or inaction should be weighed against that party.

Principle 4: The application of proportionality should be based on information rather than speculation.

Principle 5: Nonmonetary factors should be considered in the proportionality analysis.

Principle 6: Technologies to reduce cost and burden should be considered in the proportionality analysis.

 

____________________________________________________________________

SUPPLEMENTAL READING: Read the cases cited and download the Sedona Conference Proportionality Commentary. Spend some time looking it over.  To go even deeper, see: The Top Twenty-Two Most Interesting e-Discovery Opinions of 2016 (e-discoveryteam.com, 1/2/17) (the following top ranked cases concerned proportionality: 20, 18, 17, 15, 14, 11, 6, 4, 3, 2, 1); and, Good, Better, Best: a Tale of Three Proportionality Cases – Part Two (e-discoveryteam.com 4/8/12) (includes collection of earlier case law).

EXERCISE: We have a long exercise coming up in the next class with the Small, Medium of Large Game, but in the meantime, try looking at some of e-discovery task that you know about and decide if its necessary in every case, even the small ones? Why or why not?

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

Ralph Losey is a practicing attorney who specializes in electronic discovery law. He is a principal in a U.S. law firm with over 50 offices & 800 lawyers where he supervises electronic discovery work and litigation support. Ralph has written over two million words on law and technology, including six books on electronic discovery. His latest books are "E-Discovery for Everyone" (ABA 2017) and "Perspectives on Predictive Coding" (ABA 2017) (ed. & contributor). His blog is widely read in the industry: "e-DiscoveryTeam.com." Ralph is the founder and principal author of "Electronic Discovery Best Practices" and "e-Discovery Team Training," a free online course covering all aspects of e-discovery. Ralph's sub-speciality is the search and review of electronic evidence using multimodal methods, including artificial intelligence. He also has a free online training program to teach these advanced methods - the "TAR Course." Ralph has devoted a month of his time each year since 2013 to research and test various AI-enhanced document review methods. In 2015 and 2016 Ralph and his Team participated in the TREC Total Recall Track experiments sponsored by the National Institute of Standards and Technology. Ralph has been involved with computers and the law since 1978. His full biography is found at RalphLosey.com. Ralph is the proud father of two children, Eva M. Losey and Adam Colby Losey, a high-tech lawyer married to another e-discovery lawyer, Cat Jackson Losey, and, best of all, Ralph has been married since 1973 to Molly Friedman Losey, a mental health counselor and life-long friend.

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