When it comes to the newly enacted changes to the Federal Rules of Civil Procedure, Daniel L. Regard, a programmer and attorney by training and a nationally recognized electronic evidence and case management expert by trade, has a unique perspective. Below he talks about the new rules, the focus on proportionality and the impact on e-discovery. His remarks have been edited for length and style.
MCC: Let’s start with proportionality. Why is it important generally, and why is it important now?
Regard: Proportionality has always been an aspect of the U.S. discovery process. Under the rules, judges have been instructed, even on their own – sua sponte – to apply principles of proportionality to the scope of discovery. The fact that we’re going through it again is drawing people’s attention to proportionality. Even though it’s been implicitly used, it hasn’t been explicitly used all that often.
Why is it important today? Parties are struggling with the volume of information. They’re realizing that the cost of discovery risks becoming a barrier to the court system. Parties are settling, or choosing not to go into litigation, because of the cost of discovery. That’s not justice; that’s deterrence. And most people do not believe that’s a good outcome. Proportionality helps parties and judges minimize discovery in a manner that allows them to focus on what’s necessary to resolve the merits or damages of a case, rather than conducting discovery for the sake of discovery.
MCC: How will the change to Rule 26(b)(1) alter the current proportionality landscape?
Regard: Proportionality is not a new concept, but there is a big change in emphasis with the placement and visibility of the proportionality factors within the rule. Proportionality will now be listed directly in the paragraph dealing with the scope of discovery, rather than cross-referencing it in a following paragraph (which made it almost voluntary). The theory is that the heightened attention will make it more top of mind for the judge and the parties in litigation. Previously, proportionality may or may not have been part of any discussion. With the alteration, items for discovery need to be proportional up front – or they will not be allowed. Proportionality will factor into every discovery conversation.
MCC: Do you think sanctions will be more prevalent because of these changes?
Regard: I don’t know that the rules themselves will make sanctions more or less prevalent. I think they are going to clarify when it’s appropriate for sanctions versus more remedial steps. There is, however, concern in the marketplace, depending on which side of the “v.” you talk to. Thought leaders on the plaintiffs’ side say the rules have been drafted and implemented in a way that will shield defendants from sanctions. The defendants’ side say the changes will clarify the process, and avoid unnecessary motion practice that warrants sanctions, by resolving or clarifying issues from the beginning. Personally, I think the rules should result in fewer sanctions because issues will be clearer and resolved sooner, not because the rules shield one party or another from sanctions.
MCC: Let’s talk about your unique perspective. How do you view proportionality?
Regard: I approach the rules with a heavy technical background. I’ve worked with computers and litigation technology for over 25 years, and a lot of the work that iDS does deals with the data side of litigation. Making parties aware of the principles of proportionality is extremely important because we have an exponentially growing body of data about everything that parties do. Without some guidelines and teaching on how to prioritize and limit and focus on what is necessary, rather than what is possible, we could literally spend all of our money and all of our time and all of our resources on discovery. So proportionality is mandatory. Parties have been making implicit decisions about what is proportionate and what is not, but the rules should help them make explicit decisions.
The opposite side is that as parties are forced, because of volume and cost and effort, to make more proportionality decisions, those decisions may be subject to challenge, and we may see more motion practice around evaluating them. That’s only a prediction. We’ll have to wait and see what actually happens.
MCC: Give us an example of proportionality in action.
Regard: One of my examples in the e-discovery courses I teach at law schools is a hypothetical car accident. Each student is challenged to come up with a unique data source relevant to the health of the occupants or the condition of the vehicles before, during or after the accident. Whether the class is 30 people, 40 people or 50 people, everyone has different data sources. Some are probably not proportionate, such as government satellite imagery of the accident scene. Maybe the accident was so violent that it had a seismic impact on earthquake monitors. You may not have the time and resources to track down that data and isolate it, but it’s been recorded, and it exists. You also have taxicab dashboard cameras, neighborhood WiFi that picked up signals of your cell phone when you were passing by, all the various tracking devices either on the people or in the vehicles – there’s a wide variety of information available. These are the issues we’re dealing with when we talk about proportionality. Rather than automatically assuming that this or that is off-limits, we’re now giving parties the tools to reason through this – using the rules, the commentary, the white papers – and actually make a decision tree on when to include a data source or when to list it but exclude it.
MCC: For our readers, who are by and large general counsel, what are some key items they should keep in mind when approaching proportionality in their cases?
Regard: As judges and lawyers become more educated – on search terms, on information search and retrieval, on proportionality – general platitudes and presumptive statements, such as “that’s too much“ or “that’s too little,” no longer have the same impact. Parties want more actionable feedback. Why is that too much? Why is that too little? Judges are now asking, “How expensive? How much time? How many dollars? Your search terms were disproportionate – why? How many false positives are they returning? How many would you expect?” Parties want more than intuition as to the effectiveness or the proportionality of a data set. They want explicit, measurable feedback.
MCC: In their recent article in Judicature, Judge Rosenthal and Professor Gensler express optimism that what has failed in the past regarding proportionality and discovery has a much better chance this time around, despite the modesty of the changes to the rules themselves. Is their optimism justified?
Regard: I think so. The reason, as we mentioned earlier, is because parties don’t really have a choice. Unlike 10 years ago, when I could produce, more or less, all of the email or documents related to a particular subject, we now live in much more digitized world of data that’s both intentionally created and, thanks to our interconnectedness, unintentionally created, such as localized convenience copies of data that is otherwise centrally located. That means we have a data footprint that is much wider. Those footprints are typically fragments, so you can’t take one and ignore the rest if your goal is to be comprehensive. Because of the sprawl and the volume, parties do not have the time, money or resources to tackle discovery with an all-or-nothing approach. They have to make decisions, prompting more use of proportionality. It’s not about the rules; it’s about the economic drivers. Those economic drivers, along with the rule changes, have raised awareness and created a body of information that Rosenthal and Gensler made use of for their article.
I was on one of the Duke Committee teams that helped draft the Guidelines and Practices for Implementing the 2015 Discovery Amendments to Achieve Proportionality. It was a very concerted effort from a broad swath of participants encompassing the bench, plaintiffs’ bar, defense bar, consultants and law schools. The process touched a lot of different skill sets and interests, and the final result is an excellent product. Various groups – EDI, Sedona, Georgetown Advanced eDiscovery Institute – are all helping educate the market. In the bar, we are seeing heightened interest because of the rule changes and the dialogue. So, yes, I think the optimism is well-placed.
MCC: FRCP 1 specifically puts it on the court and the parties to advance the objective of the rules to achieve “just, speedy and inexpensive” disposition of cases. Practically speaking, what can the parties do? Is it realistic to expect them to abandon the combat school of litigation in favor of a cooperative approach?
Regard: Cooperation can work and already is working. An example being parties agreeing to schedule depositions. That doesn’t affect the underlying merits of a case. Parties should also cooperate in defining and executing discovery – without fear that it’s going to change the underlying merits or damages arguments. Cooperation does not dilute zealous advocacy on the substantive issues. It is prioritizing sources of discovery, not eliminating them.
MCC: The Duke Guidelines, in practice, state that the parties and judges should consider using technology to help achieve proportional discovery. Do you see that having an impact and can you give us a few examples of the intersection of technology and proportionality and the role third-party specialists can/should play?
Regard: There was a lot of debate about those particular guidelines and practices (Guideline 5, Practices 3 and 10). They are intended to encourage the parties and the judges to be forward-thinking and to apply technologies that have become well-established in the marketplace but also to consider technologies that may still be emerging – not mandate that a given party must use a given technology in a given litigation. That’s not the intent.
I think it’s a positive step. We have seen instances where technology has accelerated the discovery process and allowed parties to handle larger volumes with a lower cost per document. Despite the advances in technology, however, the rate of volume increase is still outpacing the rate of technology-increased efficiency. Stated another way, the problem is getting bigger faster than technology is solving the problem. We still need prioritization and proportionality.
MCC: And the role of third-party specialists?
Regard: The expertise in how to use these technologies – when to apply them and how to apply them – is not evenly distributed. As long as we’re dealing with complex areas of the law and complex areas of technology, parties will continue to seek out subject matter experts who can help navigate these challenging intersections for optimal outcomes. That could be a party-specific expert or a jointly appointed neutral or a court-appointed special master. We’re going to see more of that in the future, not less.
Daniel L. Regard, CEO and co-founder of Washington, DC-based iDiscovery Solutions. [email protected]
Published November 30, 2015.
