In Pursuit of What is Reasonable, Cost-Effective, and Fair in eDiscovery

by William Wallace Belt, Jr., Managing Director, Consulting

Negotiating proportionality has long been a challenge for litigators. Under FRCP Rule 26, the six-factor proportionality test, which includes considering cost of technically complex eDiscovery workflows, can overwhelm the efforts at cooperation between parties and the goal of reaching a “just, speedy, and inexpensive” resolution.

Layered on top of the legal requirements is the legal-operational need for measurable, repeatable, and predictable processes that also seek to manage and control costs and burdens for eDiscovery. With the emergence of new data types, complex data formats, and data intensive mobile phone imaging, proportionality evaluation has become significantly more challenging.

The Movement Toward a New Proportionality Framework

In 2019, an initiative led by the George Washington University Law School’s James F. Humphreys Litigation Center was launched to create a dynamic, organized discovery framework to fulfill the promise of the 2015 FRCP proportionality amendments. After two years, the “New Framework” for eDiscovery was revealed earlier this year.

The Discovery Proportionality Model, A New Framework provides attorneys with a process for:

• Ranking custodians from most important to least important based on claims and defenses.
• Assessing the relative burden of retrieving information from each data source.
• Organizing sources into a heat map according to priority and collection burden.
• Providing analytics to support cost estimations for advancing each source through collection, review, and production, and can also be used for budgeting, negotiations, and to bolster proportionality arguments.

The initiative is now managed by John Rabiej, Director, Center for Judicial Studies at GW Law, who has steered the effort to this point. At the upcoming Discovery Conference: The Future of Rule 26(B)(1)’s Proportionality Provisions set for April 2023, 10 experienced judges and over 15 practitioners and other experts will discuss the proportionality provisions in five panels to examine the ways lawyers have tried to comply with Rule 26(b)(1) and Rule 26(g)(1)(B)(iii) as well as the new framework, and discuss strategies that might be useful in refining the proportionality analysis to make it more practical.

“The New Framework is the only eDiscovery tool that fully accounts for and implements the Rule 26(b)(1) proportionality factors, using cost calculators that are the most detailed and sophisticated of their kind.”

John K. Rabiej, Founder, Rabiej Litigation Law Center

William Wallace Belt, Jr., Managing Director at CDS, is actively working on the calculator portion of the new initiative sponsored by CDS. Starting with the number of custodians and the gigabyte volume, the calculator lays out the process and associates it with cost numbers to help counsel generate a fact-based estimate of the cost burden of a new discovery project. With established numbers, the court can make informed decisions. In addition, Daniel Diette, Lead Data Scientist, CDS, is working on the cost calculator’s TAR workflows and how factors related to TAR can impact cost.

Leveling the Playing Field

Historically, the arguments attorneys have made on cost proportionality have often been inconsistent and poorly supported by facts provided to courts and judges. At last year’s Bench Bar Conference, one judge compared arguments he has heard from counsel as “jazz hands.”

Estimates offered in proportionality disputes can also vary. For example, one side may estimate eDiscovery costs of $10 million based on unspecified underlying cost factors, while the opposing side may argue that it should cost only $50,000 – again, without presenting facts in support. In the absence of useful fact information, the judge may be left with no other option than to “split the difference” without regard to real metrics or parameters that could inform that decision and that will ultimately drive actual costs.

Fortunately, the New Proportionality model provides a step-by-step framework to help parties negotiate what is proportional and what is not proportional to the needs of the case. While many attorneys make similar calculations “on a gut level,” the Proportionality Framework can provide structure to the analysis and may help level the playing field by providing a standard vocabulary and reliable cost metrics.

Although the framework itself is not deciding what is proportional, it provides stakeholders with granular information to support or challenge an argument. CDS Advisory Services brings together discovery consultants and technical experts to assist clients throughout the process. Our belief is that when everyone is working from the same set of standards, we can achieve an expedited and fair resolution.