Welcome to Module 4-C.

Cooperation and Proportionality in Discovery

This important Module begins considering the 53 page order of United States Magistrate Judge Nan R. Nolan in Kleen Products . The Order begins by admonishing counsel not to confuse advocacy with adversarial conductKleen Products, LLC, et al. v. Packaging Corp. of Amer., et al.Case: 1:10-cv-05711, Document #412 (ND, Ill., Sept. 28, 2012). This opinion from a jurist well-known for kindness and  e-discovery expertise advances the jurisprudence on the all-important lawyer best practice of Cooperation. Next this class considers another case that shows the importance of Proportionality.  Moody v. Turner Corp., Case No. 1:07-cv-692 (S.D. OH, Sept. 21, 2010).

Cooperation is the fifth step of the new attorney-centric EDBP (Electronic Discovery Best Practices) work flow chart.

 The Kleen Products opinion also provides an excellent collection of legal authority on a basic component for cooperation, namely proportionality.

Judge Nolan concluded this opinion with three specific best practice suggestions, which have been incorporated into the Cooperation page of EDBP. Further, all of the best practices developed by the Seventh Circuit Electronic Discovery Committee, with which Judge Nolan is actively involved, and were set forth in their Principles Relating to the Discovery of Electronically Stored Information (Rev. 08/01/2010), have also been included in the EDBP. So too have the New York State Bar Associations Best Practices In E-Discovery In New York State and Federal Courts (2011). Although the EDBP is still far from complete, and will, in any event, always remain an open and evolving project, almost half of the best practices are now at least somewhat described. See the Preservation page, the Cooperation page, and the Review page.

Cooperation in Discovery is an Ethical Imperative

Judge Nolan begins her opinion with a quote from The Sedona Conference® Cooperation Proclamation, 10 Sedona Conf. J. 331, 331 (2009).

Lawyers have twin duties of loyalty: While they are retained to be zealous advocates for their clients, they bear a professional obligation to conduct discovery in a diligent and candid manner. Their combined duty is to strive in the best interests of their clients to achieve the best results at a reasonable cost, with integrity and candor as officers of the court. Cooperation does not conflict with the advancement of their clients’ interests—it enhances it. Only when lawyers confuse advocacy with adversarial conduct are these twin duties in conflict.

So many lawyers do not understand this, especially the ones my age who were raised in a culture of litigation as war. They seem to have forgotten the oaths they swore long ago when first admitted to the Bar and allowed to practice as officers of the court. They seem to have forgotten their basic ethical duties of Candor to the Tribunal. See ABA Model Rule of Professional Responsibility, Rule 3.3 Candor Toward Tribunal. Not to mention their ethical duty under Rule 3.2 to Expedite Litigation, and duty under Rule 4-3.4 of Fairness To Opposing Party and Counsel. The actual language of Rule 4-3.4 bears repetition:

A lawyer shall not: 
(a) unlawfully obstruct another party’s access to evidence or otherwise unlawfully alter, destroy, or conceal a document or other material that the lawyer knows or reasonably should know is relevant to a pending or a reasonably foreseeable proceeding; nor counsel or assist another person to do any such act.

Cooperation in Discovery is Required by Rules of Procedure

Many attorneys and judges also seem to have forgotten what Judge Paul Grimm in Mancia called the most misunderstood and under-utilized Federal Rule of Civil Procedure, Rule 26(g). Mancia v. Mayflower Textile Services Co., 253 F.R.D. 354 (D. Md. 2008). Rule 26(g) is the Rule 11 of discovery. Under 26(g) an attorney’s signature on a discovery request or response “certifies” that the request is reasonable and the disclosure is complete and correct, and the discovery is “not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.”

As Judge Grimm’s Mancia opinion goes on to explain in great detail, cooperation in discovery is not only required by professional ethics, but also by many of our rules of civil procedure, including especially Rule 1. Also see Gensler, The Bull’s-Eye View of Cooperation in Discovery, 10 Sedona Conf. J. 363, at 363 (2009 Supp.); Sedona Conference, The Case for Cooperation, 10 Sedona Conf. J. 339 (2009 Supp.); Losey, R., Mancia v. Mayflower Begins a Pilgrimage to the New World of Cooperation, 10 Sedona Conf. J. 377 (2009 Supp.); Waxse, J.,  Cooperation—What Is It and Why Do It?, XVIII Rich. J. L. & Tech. 8 (2012); Losey, R., Judge David Waxse on Cooperation and Lawyers Who Act Like Spoiled Children (2012); Losey, R., Ethics of Electronic Discovery (2012).

Plaintiff’s Motions in Kleen Products

After beginning the opinion with the quote from Cooperation Proclamation, Judge Nolan goes on to explain the series of discovery motions filed in this class action antitrust case.

  • Plaintiffs’ Motion to Compel Defendants to Produce Documents and Data from All Reasonable Accessible Sources
  • Plaintiffs’ Motion to Compel Temple-Inland to Include Additional Document Custodians
  • Plaintiffs’ Motion to Compel International Paper Company to Include Additional Document Custodians
  • Defendant Georgia-Pacific LLC’s Motion for Protective Order

Judge Nolan then goes on to recount the other discovery issues that the parties had previously resolved without her having to enter an order. Judge Nolan did, however, have many, many, hearings on these issues, and made rather suggestive statements of her thoughts, statements that indicated how she would probably rule.

The biggest dispute the parties resolved after days and days of help by Judge Nolan concerned  predictive coding. This is the much discussed dispute where the plaintiffs were trying to force the defendants into a “redo” of their prior search and production that did not use predictive coding. The plaintiffs claimed that the keyword search used by defendants likely only found 25% of the relevant documents, whereas a predictive coding search would likely  retrieve 70%. The plaintiffs had a good argument from an abstract point of view, but it was flawed procedurally. It came too late, after the plaintiff’s production was substantially complete. Plus, as Judge Nolan pointedly observed in the hearings to help persuade the plaintiffs to back-off:

Sedona Principle 6, “[r]esponding parties are best situated to evaluate the procedures, methodologies, and techniques appropriate for preserving and producing their own electronically stored information.” See The Sedona Conference, The Sedona Conference Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-Discovery, 8 Sedona Conf. J. 189, 193 (Fall 2007).

Plaintiffs wanted to use the latest new age methods of search, but approached the problem with decidedly old school adversarial methods. It was an odd mix doomed to failure. You have got to have both, especially when you are in front of a sophisticated, Sedona-schooled judge like Nan Nolan. If you are really after truth and justice in today’s world of exponentially growing ESI, and not just playing a refashioned game of hassle the other side, both your technology and your culture need to be new age. As Jason R. Baron puts it:

[T]he challenge is how best to reasonably (not perfectly) manage the exponentially growing amount of ESI caught in, and subject to, modern-day discovery practice. The answer lies principally in culture change (i.e., fostering cooperation strategies), combined with savvier exploitation of a range of sophisticated software and analytical techniques.”

Baron, J., Law In The Age of Exabytes, XVII RICH. J.L. & TECH. 9, at pg. 5 (2011).

Interrogatory Six and Proportionality

Still, even though the predictive coding battle settled, many other discovery disputes remained, including Defendant Georgia-Pacific LLC’s Motion for Protective Order. In this motion Judge Nolan was asked to quash Plaintiffs’ Sixth Interrogatory. The rog requested various background information over an eight-year period for each of the approximately 400 persons on the litigation-hold list. The defendant claimed that this request was too burdensome, that it would take 800 hours to try to answer, and specified the details of what would be required. Plaintiff’s responded by saying the Sixth Interrogatory “is hardly burdensome” and can be “answered by a small production of paper.” Id. at pg. 17.

The court did not buy the plaintiff’s easy button argument. In fact, Judge Nolan found it disingenuous, and invoked the all important proportionality constraints that govern all discovery. Here is her ruling:

First, issuing the Sixth Interrogatory within days of receiving the list of litigation-hold recipients violated the spirit of cooperation that this Court has encouraged the parties to pursue. …

Second, GP has established an undue burden in responding to the Sixth Interrogatory. “All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).” Fed. R. Civ. P. 26(b)(1). The Rule 26 proportionality test allows the Court to “limit discovery if it determines that the burden of the discovery outweighs its benefit.” In re IKB Deutsche Industriebank AG,No. 09 CV 7582, 2010 WL 1526070, at *5 (N.D. Ill. Apr. 8, 2010). Rule 26(b)(2)(C)(iii) requires a court to limit discovery if it determines that “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.” In other words, “Rule 26(b)(2)(C)(iii) empowers a court to limit the frequency or extent of discovery if it determines that the burden or expense of the proposed discovery outweighs its likely benefit or that it is unreasonably cumulative or duplicative.” Sommerfield v. City of Chicago, 613 F. Supp. 2d 1004, 1017 (N.D. Ill. 2009) objections overruled, 06 C 3132, 2010 WL 780390 (N.D. Ill. Mar. 3, 2010). “The ‘metrics’ set forth in Rule 26(b)(2)(C)(iii) provide courts significant flexibility and discretion to assess the circumstances of the case and limit discovery accordingly to ensure that the scope and duration of discovery is reasonably proportional to the value of the requested information, the needs of the case, and the parties’ resources.” The Sedona Conference, The Sedona Conference Commentary on Proportionality in Electronic Discovery, 11 Sedona Conf. J. 289, 294 (2010); see Sommerfield, 613 F. Supp. 2d at 1017 (“The application of Rule 26(b)(2)(C)(iii) involves a highly discretionary determination based upon an assessment of a number of competing considerations.”).

Id. at 19, 20. As a strong proponent of proportionality I was glad to see Judge Nolan add to the growing jurisprudence in this area.

Custodian Count and Proportionality

There was also a battle over scope of discovery centered around custodians. The plaintiffs wanted the ESI of 35 more custodians from two defendants. The defendants were willing to add 30 more custodians, but wanted limits on the sources of ESI that would be included for the additional custodians.

Judge Nolan begins her analysis of this issue by noting that anti-trust cases take an expansive view of relevance and allow for broad discovery. Id. at 27. But she also noted once again the importance of proportionality:

However, “[a]ll discovery, even if otherwise permitted by the Federal Rules of Civil Procedure because it is likely to yield relevant evidence, is subject to the court’s obligation to balance its utility against its cost.” U.S. ex rel. McBride v. Halliburton Co., 272 F.R.D. 235, 240 (D.D.C. 2011) (Facciola, M.J.); see Fed. R. Civ. P. 26(b)(2)(C).

Id. at 28.

Plaintiff’s argued that the proposed additional custodians and ESI sources should be included  because they were all senior executives with responsibilities over the pricing issues in the case who “exchanged an unusually large” number of emails with top sales and marketing executives already named as custodians. Id. at 29. Judge Nolan rejected this argument:

But just because a proposed custodian exchanged a large number of emails with a current custodian does not mean that the proposed custodians will have a significant number of important, non-cumulative information. Further, until Plaintiffs have had an opportunity to review the huge quantity of information already produced from the existing custodians, it is difficult for the Court to determine the utility of the proposed discovery. See McBride, 272 F.R.D. at 241 (“Without any showing of the significance of the non-produced e-mails, let alone the likelihood of finding the ‘smoking gun,’ the [party’s] demands [for additional custodians] cannot possibly be justified when one balances its cost against its utility.”); Jones v. Nat’l Council of Young Men’s Christian Ass’ns of the United States, No. 09 C 6437, 2011 WL 7568591, at *2 (N.D. Ill. Oct. 21, 2011) (“The Court finds that Plaintiffs’ untargeted, all-encompassing request fails to focus on key individuals and the likelihood of receiving relevant information.”); Garcia v. Tyson Foods, Inc., No. 06-2198, 2010 WL 5392660, at *14 (D. Kan. Dec. 21, 2010) (Waxse, M.J.) (“Plaintiffs present no evidence that a search of e-mail repositories of the 11 employees at issue is likely to reveal any additional responsive e-mails. . . . Plaintiffs must present something more than mere speculation that responsive e-mails might exist in order for this Court to compel the searches and productions requested.”).

Id. at 30.

Judge Nolan also pointed out that one of the two defendants at issue here had already produced the ESI of 75 custodians, and the other of 28 custodians. But she also noted:

[T]he selection of custodians is more than a mathematical count. The selection of custodians must be designed to respond fully to document requests and to produce responsive, nonduplicative documents during the relevant period. See, generally, Eisai Inc. v. Sanofi-Aventis U.S., LLC, No. 08-4168, 2012 WL 1299379, at *9 (D.N.J. April 16, 2012).

Id. at 30-31.

Judge Nolan then goes on to grant plaintiffs’ motion to compel, in part, basically because the two defendants failed to back-up their allegations of undue burden with specific facts:

While a discovery request can be denied if the “burden or expense of the proposed discovery outweighs its likely benefit,” Fed. R. Civ. P. 26(b)(2)(C)(iii), a party objecting to discovery must specifically demonstrate how the request is burdensome. See Heraeus Kulzer, GmbH v. Biomet, Inc., 633 F.3d 591, 598 (7th Cir. 2011); Sauer v. Exelon Generation Co., No. 10 C 3258, 2011 WL 3584780, at *5 (N.D. Ill. Aug. 15, 2011). This specific showing can include “an estimate of the number of documents that it would be required to provide . . . , the number of hours of work by lawyers and paralegals required, [or] the expense.” Heraeus Kulzer, 633 F.3d at 598. Here, TIN’s and IP’s conclusory statements do not provide evidence in support of their burdensome arguments.

Id. at 32.

Rule 26(b)(2)(B) and Timing

26b2BPlaintiffs also sought to compel all defendants to search their backup tapes. Defendants invoked the protection of Rule 26(b)(2)(B), claimed their backup tapes were not reasonably accessible, and that Plaintiffs had shown good cause to require their production. Id. at 35.

Judge Nolan begins her analysis of this straight-forward dispute by analysis of existing case law on 26(b)(2)(B). She also examines case law dealing with back up tapes. It is a good collection of legal authorities on both the general and specific issues.

The defendants here did more than make general allegations of burden, they submitted affidavits showing costs just to restore their tapes ranging from a high of one million dollars for one defendant, to a low of only two hundred thousand dollars for another. Plaintiffs disputed these cost estimates and suggested defendants could reduce the tape restoration costs by sampling the media to determine whether they contain responsive nonduplicative information. Id. at 37.

Judge Nolan sidestepped these issues by holding that the plaintiffs motion was premature. She noted that there is no discovery cutoff date in this case, and plaintiffs are only 20% complete with their first level review of Defendants’ documents. Id. Judge Nolan ordered plaintiffs to complete their review of the readily accessible ESI produced before clamoring for production of inaccessible data. This is in accord with the rules and commentary thereon:

The volume of—and the ability to search—much electronically stored information means that in many cases the responding party will be able to produce information from reasonably accessible sources that will fully satisfy the parties’ discovery needs.

Fed. R. Civ. P. 26(b)(2), advisory committee’s note (2006). Accordingly, Judge Nolan denied plaintiff’s motion to compel without prejudice.


Judge Nan Nolan, who is a great lover of art and always embodies the glass half-full attitude, concluded the Kleen Products order on a positive note. She points to a number of courts that have already instituted model orders to assist counsel in transitioning to the cooperative discovery approach. Seventh Circuit Electronic Discovery Pilot Program, Model Standing Order; Southern District of New York Pilot Program; District of Delaware, Default Standard for Discovery.

Judge Nolan then draws three lessons from Kleen Products about Cooperation:

First, the approach should be started early in the case. It is difficult or impossible to unwind procedures that have already been implemented. Second, in multiple party cases represented by separate counsel, it may be beneficial for liaisons to be assigned to each party. Finally, to the extent possible, discovery phases should be discussed and agreed to at the onset of discovery.

Id. at 39.

For how these three best practice recommendations fit into the larger picture of Electronic Discovery Best Practices, see the page at EDBP.com on the fifth step of Cooperation under the 26(f) Conferences and Proportionality sub-headings. While you are at it look at the cooperative Dialogues sub-heading of the EDBP page for Predictive Coding. That is part of the seventh step of C.A.R. (Computer Assisted Review). The current outer limits of cooperation in the context of predictive coding are examined, including the hotly debated issues of disclosure, or not, of search method and irrelevant seed set documents.

The current position of EDBP on this cooperation issue is equivocal, sometimes yes, sometimes no, it all depends. See the first case approving predictive coding protocols: Da Silva Moore v. Publicis Groupe, _ F. Supp. 2d _, 2012 WL 607412 (S.D.N.Y. Feb. 24, 2012) (affirmed in Da Silva Moore v. Publicis Groupe, 2012 WL 1446534, at *2 (S.D.N.Y. Apr. 26, 2012)).

Judge Nolan concludes by calling upon all attorneys to conduct discovery in a cooperative manner, which she calls a paradigm shift.

The Cooperation Proclamation calls for a “paradigm shift” in how parties engage in the discovery process. The Sedona Conference, The Sedona Conference Cooperation Proclamation, 10 Sedona Conf. J. 331, 332–33 (2009). In some small way, it is hoped that this Opinion can be of some help to others interested in pursuing a cooperative approach. The Court commends the lawyers and their clients for conducting their discovery obligations in a collaborative manner.

Unfortunately, Judge Nan Nolan is correct in endorsing the Sedona paradigm shift observation. I say unfortunately because, unlike Judge Nolan, I sometimes see the glass half-empty. Since long-standing rules of ethics and civil procedure have always required cooperative discovery, what does the paradigm shift observation say about our existing legal system?


Beware of the ESI-discovery-tail wagging the poor old merits-of-the-dispute dog

Judge Nolan’s opinion should be considered in context with a prior opinion by Senior U.S. District Judge Sandra S. Beckwith concerned with proportionality in e-discovery. Moody v. Turner Corp., Case No. 1:07-cv-692 (S.D. OH, Sept. 21, 2010). Judge Beckwith is an early signatory of  The Sedona Conference® Cooperation Proclamation. She also uses one of my favorite sayings about the e-discovery-tail wagging the  merits-of-the-dispute dog in this opinion. But you will have to read to the end for her full context quote.

This opinion arises out of ERISA and concerns a dispute over the plan administrator’s calculation of pre-retirement lump sum pension benefits. (Yawn.) The plaintiffs’ attorneys apparently tried to stay awake by engaging in old-fashioned, non-cooperative, hardball discovery, which Judge Beckwith summarized as a “lengthy and contentious discovery process.” Seemed like they picked the wrong judge for that sort of litigation tactic, but maybe they have never even heard of Sedona or the Cooperation Proclamation.

Plaintiffs’ Production Request

The plaintiff made many, many discovery requests in what should be a factually simple, albeit legally complex dispute. In two of their requests for production they included categories concerning ESI and even specified keywords. Here is how Judge Beckwith describes them:

Plaintiffs’ request for production No. 1 and No. 2 sought production of emails concerning the plan that contained words or phrases identified in nine separate sub-requests; the Court’s rough count of the requested search terms is at least 160 different terms.

Id. at pg. 3.

Defendants responded with an objection to the broad definitions of search terms proposed. They supported this objection by describing a “test” search using the keywords for one of the plaintiffs’ many sub-requests. This one search alone resulted in hits for 29.54 gigabytes of information. Id. Good for the defendants. That is exactly how you should go about opposing disproportional discovery requests, although I would have provided more detail, such as file counts and review costs projections.

No One Can Afford The Whole Truth

Plaintiffs’ counter-argued with complaints about “defendants’ failure to conduct a search for “all” documents within their “custody or control.” Id. at. pg. 4.  They wanted the whole truth, total recall, damn the costs involved. This is easy to say when you expect the other side to pay for all of those costs, but ignores the realities of our contemporary information-flooded-world. No one can handle the whole truth. It’s too expensive to get and is anyway unnecessary to do justice.

When is the legal profession going to wake up to the fact that discovery and production of “any and all” relevant documents is no longer possible? The truth, the whole truth, and nothing but the truth, is a quaint myth of the past. It was never true in the paper-world anyway, at least in the post-Xerox paper-world, and it is impossible now. Moreover, it is irresponsible now for attorneys or judges to expect it. There quickly reaches a point of diminishing returns and proportionality must trump whole-truth delusions. The tail must not wag the dog.

When it comes to e-discovery, we cannot afford the whole truth, and it is not necessary to do justice. We only need enough of the highly-relevant-ESI for the fact-finder, be it judge, jury, or counsel, to get a good sense of what happened. Forget about the whole truth. Forget about seeing each and every electronic document that might meet the law’s expanded notion of relevance. Instead, embrace a new credo of proportionality. Seek balance. Towards that end a good place to start is to study the treatise on proportionality: The Sedona Conference® Commentary on Proportionality in Electronic Discovery. The Commentary will be available for free downloading at www.thesedonaconference.org on October 6, 2010, the day after their webinar on this important subject on October 5, 2010, at 1:00-2:30 p.m. EST.

Magistrate Hogan Intervenes

Magistrate Judge Hogan conducted a hearing on these issues on May 12, 2009. He granted Plaintiffs’ motion in part, subject to further conferences with the parties to try to narrow the scope of these discovery disputes. His Order as quoted by Judge Beckwith in Moody observes:

In essence, this discovery dispute amounts to a situation in which both sides have dug their heels into the proverbial sand of their respective corners in the sandbox. Plaintiffs argue that they are entitled to everything they have asked for, as written, without consideration given to any objections or claims of privilege. Defendants, on the other hand, firmly assert that they have produced everything to which plaintiffs are entitled and steadfastly refuse to produce any ESI whatsoever on the grounds that the expense renders any such search and production too burdensome. Neither position is tenable.

Id. at pgs. 4-5.

The Magistrate Judge held further conferences on October 28, 2009, November 12, 2009, and December 1, 2009, to help the parties work out a reasonable discovery plan. This process did not satisfy plaintiffs counsel and they filed another motion to compel. Their motion alleged that “defendants had agreed to run a list of search terms against the email files that had been collected from 33 identified custodians.” Id. at pg. 6.

This led to yet another hearing before Magistrate Judge Hogan where plaintiffs’ counsel argued that defense counsel was stonewalling. Id. Defense counsel countered by complaining “that the costs of attempting to comply with Plaintiffs’ increasingly burdensome requests were escalating rapidly, and there was no reason to require Defendants to incur those costs without a clear demonstration of relevance.” Id. at pg. 7. Magistrate Judge Hogan noted that one of the problems was that Defendants initially promised to do something, but “basically did nothing.”

My guess is defense counsel agreed to do something before they realized how much it would cost. As I like to say to make the point about the importance of e-discovery project estimation: Never agree to get on a plane until you at least have an idea of where it is going and what the ride will cost! You would be amazed at how common a scenario this is. But Magistrate Judge Hogan also had some criticisms for plaintiffs counsel, concluding that “… plaintiff is overreaching way beyond what I think anybody is ultimately going to need … to resolve this case.” Id. at pg. 8.

The Plaintiffs Appeal

Judge Hogan issued an order after this last hearing, which plaintiffs appealed, prompting the instant opinion by Judge Beckwith. Judge Beckwith affirmed her Magistrate’s discovery order, which had essentially compelled some additional discovery and prohibited the rest. Judge Beckwith began her discussion with a familiar refrain:

The discovery disputes between the parties have consumed an inordinate amount of judicial time and effort, not to mention the time and resources of the parties. The Court agrees with Magistrate Judge Hogan’s observation that both parties have taken unrealistic positions over the course of this case.

Id. at pg. 9.

The Tail Should Not Wag The Dog

Now here we come to the key quote in this opinion, one which I predict will be often cited (I know I will):

As other commentators have observed, the increasing amount of electronic information in the possession of parties to litigation has caused discovery in some cases to become increasingly complex and expensive.  In this Court’s view, the mere availability of such vast amounts of electronic information can lead to a situation of the ESI-discovery-tail wagging the poor old merits-of-the-dispute dog. That appears to be the situation that occurred in this case.

Id. (emphasis added).

Judge Beckwith also observed that :

Plaintiffs’ original document requests, in particular requests 1, 2 and 7, were clearly overly broad and would have imposed an undue burden upon Defendants that is disproportionate to the likelihood of discovering truly relevant information.

Id. at pgs. 9-10.

What happened to the agreement to search you might wonder?

Defendants have specifically represented to this Court that they have in fact conducted that search on the 33 record custodians previously agreed upon with the Plaintiffs.

Kind of makes you wonder why Magistrate Judge Hogan had made a contrary holding that defendants had done nothing to carry out the agreement. No explanation is provided.

Actual Burdens Outweighed Potential Benefits

Plaintiffs had also sought discovery from a number of law firms who had previously represented the ERISA plan. This is the part where plaintiffs accused defendants of stonewalling. Judge Beckwith shut down this discovery, holding:

Plaintiff’s overly broad discovery requests and demands for extensive key word searches of the law firms’ ESI are not reasonably calculated to lead to the discovery of relevant, admissible evidence in this case.  And requiring such a broad search would impose an undue burden on those law firms, without a corresponding showing from Plaintiffs of the likelihood of discovering relevant, nonprivileged information.

Id. at pg. 12.


Those of us who spend all of their time in e-discovery are in danger of confusing the tail for the dog. Yes, the pursuit of the facts, the truth, is important in every case. But it is not the case itself. It is the tale behind the case, the story. Truth leads to justice, but is not an end in itself, at least not in our legal system (that is the realm of philosophy). Our system of justice depends upon the parties discovery of the stories, the facts that reveal the truth, not the judges discovery of those facts. It is an adversarial process, but at the same time, it is a system based on trust and compliance with the rules, both rules of procedure and ethics. When the truth is discovered, then, and only then, can justice be done. But discovery for its own sake is pointless. We need the truth for justice, but is there anything more pathetic and comical than a crazy dog chasing its own tail?

The tail must be proportionate and should not be sought for its own sake. Nothing is more wasteful than discovery-about-discovery. We must control the costs of discovery and make them proportionate to the case. Assuming there are no special over-riding policy considerations, such as in a civil rights case, it is crazy for a party to be required, or even threatened, with having to spend a million dollars in e-discovery in a case with a true value of a million. That is the tail wagging the dog.

To state the obvious, a dog’s tail weighs far less than the rest of the dog. You will never see a dog, or any other animal, with a tail that weighs more than the body. That is not a real dog, anymore than excessive discovery is real justice. It should not be possible. Yet this kind of freak of nature is fast becoming commonplace in state and federal courts around the country.

The dog, the case, should always be much bigger than the tail. How much bigger? That is indeed the key question we should all now focus on. Is ten percent too much or too little? Should you have to spend $100,000 in e-discovery in a million dollar case?

Although some plaintiffs might think the Golden Mean in math and art should also apply to e-discovery costs, namely 1.61803399, or 38% — I don’t. That is too much. Maybe even 10% is too much. All depends. Also, ten percent of what? An exaggerated Plaintiff’s demand? An unrealistic defense analysis? Other factors to consider include the efficiency of the expenditures and the risks involved. Are you efficient and reviewing 100 files per hour at contract lawyer rates? Or are you plodding around at 30 documents an hour and partner rates? How much bang are you getting for your buck? These factors and more all enter into the complex equation. But still, there should be some general rules where you assume reasonable expert efforts. Is 5% just right, 10%, 20% or even 38%?

This is the Goldilocks question. What may be too big for one, is too small for another. What is the “just right” size for your case? What is the just amount that a party should be required to spend to defend a case? To conduct all discovery? To conduct e-discovery?

Everyday in conferences, hearings, and mediations around the country parties are encouraged to pay more to settle a case than it is worth, just to avoid disproportionate costs. Judge, mediators, government lawyers, and opposing counsel have got to stop saying that. It is not fair to require a party to spend $38,000 on e-discovery in a $100,000 case. That may be the Golden Mean in art and math, but is is disproportionate in e-discovery. We have to stand up for the rights of parties for just, speedy and inexpensive litigation. That is, after all, the prime directive of Rule 1, FRCP. We have to stop these disproportionate freaks of nature, these dogs with tails so big they are capable of wagging the body. Judge Beckwith in Moody has made an important step in the right direction.


SUPPLEMENTAL READING: Judge Nolan’s opinion is a long, but important case. Be sure to at least skim read all of it.

Additional Optional Reading. Find and read at least one additional article on Cooperation.

Students are invited to leave a public comment below. Insights that might help other students are especially welcome. Let’s collaborate!

Copyright Ralph Losey 2015

Friend of AI. Tech lawyer by day since 1980 with special skills and experience using legal technology, especially AI. Also an Arbitrator (AAA) and legal tech writer. By night an electronic meditation musician-composer since 1973 using computers and synthesizers.

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