The volume of electronically stored information (ESI) continues to grow exponentially, most recently due to the surge in corporate adoption of chat, messaging and collaboration apps. Some eDiscovery experts are coming together to formalize a solution on a systemic level that will create a defensible, transparent, repeatable approach to right-size discovery.
The GW Proportionality Initiative
Since the 2015 amendments to the Federal Rules of Civil Procedure (FRCP), the focus has shifted to emphasize proportionality in eDiscovery. But the attempt at balancing benefit vs. burden to determine proportionality has been a frustratingly subjective process.
As reported in eDiscovery Today, The James F. Humphreys Complex Litigation Center of The George Washington University Law School has embarked on a project to develop a proportionality benefit-and-burden model that provides a practical means for assessing claims of proportionality by plaintiff and defense counsel. The model is intended to provide a structured methodology to identify relevant custodians and data sources in order to present a clearer picture of the needs of the case, facilitate negotiations, and better inform the bench.
John Rabiej, former Director of Duke Law School Center for Judicial Studies, is partnering with the Humphreys Complex Litigation Center to lead the initiative. The steering committee and editorial board include numerous judges, attorneys, and eDiscovery experts, including CDS’ own William W. Belt, Jr., Managing Director, Consulting. “The 2015 Rule changes laid the foundation for the critical next step – practical strategies and workflows that better align eDiscovery with the first goal of the first rule of legal proceedings in FRCP 1: ‘the just, speedy, and inexpensive determination of every action and proceeding,’ Bill said. “I’m looking forward to co-chairing one of the four teams on this initiative, and to working with GW Law, my law school alma mater.”
The model is targeted to be published for public comment by the end of the year. The Complex Litigation Center plans to hold an online bench-bar conference on the proportionality model on March 25-26, 2021. Feedback will be sought from all quarters of the legal profession and eDiscovery experts will be sought and seriously considered by the project’s editorial board before it issues a final version.