Proportionality: The New Framework is Well-Intentioned, but…

eDiscovery costs are an evergreen topic for opinion pieces, panel discussions, and legal institutes. In March, the James F. Humphreys Complex Litigation Center at the George Washington Law School issued The eDiscovery Proportionality Model: A New Framework.

While well-intentioned, implementing the New Framework could result in court-sanctioned fishing expeditions that ignore the central inquiries of Rule 26(b)(1), relevance and proportionality. Rather than focus first on the potential relevance of data, the cost of retrieving that data, and the proportionality of those costs, the New Framework focuses on “how much data can be produced based on the amount in controversy?”

This suboptimal query stems from the author’s self-described break from examining the marginal utility of specific custodians and data sources to instead focus almost solely on the cumulative costs of the requested discovery and comparing that to the amount in controversy. This line of thinking brings forth several issues, including:

  • The proposed New Framework relies on two highly speculative and fact-sensitive measures: the amount in controversy and the total cost/complexity of obtaining data. While both measures are often very difficult or impossible to estimate with certainty at the outset of a case, the New Framework treats them as objectively verifiable facts.
  • Every litigator knows that document review is the most expensive part of discovery. Under the New Framework’s total cost model, an enterprising litigant may say, “just produce everything without review and then claw back what you need to.” This would certainly lower the cost of discovery and allow for more production, but it ignores the proportionality component of the Federal Rules.
  • The New Framework contradicts itself by purportedly “set[ting] out objective criteria used for guidance to prioritize custodians” but then recognizes that in the end, such decisions “represent judgment calls by those making them.” Absent objective criteria that can be universally applied, there is no repeatable framework but rather a set of tools that may or may not be useful in any given matter.
  • Similarly, even though the New Framework is “designed to be universal and apply to all cases large and small,” the authors admit that it does not readily apply in “cases involving a multitude of custodians.”
  • The New Framework authors also exclude cases involving data types they deem “atypical,” that are, frankly, commonplace, including:
    • Data From Departed Employees: The U.S. workforce is highly mobile, and litigation works in arrears; to designate departed employees as atypical is, well, atypical.
    • Non-Custodian Data: In many matters, non-custodial data is highly relevant, centrally located, and obtainable in a cost-effective manner.
    • International Data: Cross-border disputes are typical, not exceptional.

If these data types are “atypical” and excepted from the New Framework, then The New Framework must only apply to small, easily defined cases, with a few U.S.-based custodians who are all currently employed by the responding party where non-custodial data is immaterial.

We appreciate the efforts of the New Framework authors to add some certainty to the eDiscovery process. Still, we believe the New Framework offers less of a one-size-fits-all solution and more of a set of additional tools the eDiscovery professionals can rely upon when performing early case analysis.

Ray Biederman is a founding partner of Proteus Discovery Group, LLC, an eDiscovery services and consulting firm, and Sean Burke is a partner with Mattingly Burke Cohen & Biederman, LLP, a law firm focused on commercial litigation and eDiscovery counsel representation. To read the complete comments of the authors, click here. You can reach them at sean.burke@mbcblaw.com and [email protected].

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