Proportionality

Proportionality. The polestar of cooperation must be an understanding and agreement that the discovery sought and provided by both sides will be proportional. There is extensive legal authority for the proportionality doctrine that has been long embodied in Rule 26(b)(2)(C), including the mentioned Kleen Products opinion. Also See Seventh Circuit Principles Relating to the Discovery of Electronically Stored Information, Principle 1.03 (Discovery Proportionality) (The proportionality standard set forth in Fed. R. Civ. P. 26(b)(2)(C) should be applied in each case when formulating a discovery plan); Losey, R., Good, Better, Best: a Tale of Three Proportionality Cases, part one and part two (2012); Losey, R., Bottom Line Driven Proportional Review (2012); Losey, R., An Old Case With a New Opinion Demonstrating Perfect Proportionality (2011); Losey, R., Second Edition of The Sedona Principles and the Need for Proportionality (2007);  Predictive Coding and the Proportionality Doctrine: a Marriage Made in Big Data, 26 Regent U. Law Review 1 (2014).

Also see Default Standard for Discovery, Including Discovery of Electronically Stored InformationDelaware District Court Committee  (2011) Standard 1.b.:

Proportionality. Parties are expected to use reasonable, good faith and proportional efforts to preserve, identify and produce relevant information. This includes identifying appropriate limits to discovery, including limits on custodians, identification of relevant subject matter, time periods for discovery and other parameters to limit and guide preservation and discovery issues.

Disagreement between counsel on where to draw the proportionality line is to be expected because the premise of proportionality is some agreement as to the true value and importance of the case. This requires counsel to discuss both liability and damages in a realistic, non-posturing manner. Even non-binding agreements based at least in part on these core issues can be very difficult at the beginning of a case, but not impossible. For instance, all early mediation and case settlement depends on some common parameters beyond posturing as to case value. In especially difficult or contentious cases the early use of a mediator or special master to help the parties reach basic agreements on how discovery will be conducted can realize substantial savings over the rest of the case. For an excellent article addressing these and other proportionality related issues see: Steven Bennett, E-Discovery: Reasonable Search, Proportionality, Cooperation, and Advancing Technology, 30 J. Marshall J. Info. Tech. & Privacy Law 433 (2014).

The U.S. District Court for the Northern District of California suggests that proportionality be discussed and includes this on their ESI checklist for use during the Rule 26(f) meet and confer process. Section six of the Checklist states:

IV. Proportionality and Costs
☐ The amount and nature of the claims being made by either party.
☐ The nature and scope of burdens associated with the proposed preservation and discovery of ESI.
☐ The likely benefit of the proposed discovery.
☐ Costs that the parties will share to reduce overall discovery expenses, such as the use of a common electronic discovery vendor or a shared document repository, or other cost-saving measures.
☐ Limits on the scope of preservation or other cost-saving measures.
☐ Whether there is potentially discoverable ESI that will not be preserved consistent with this Court’s Guideline 1.03 (Discovery Proportionality).

The referenced California Guidelines for the Discovery of Electronically Stored Information at 1.03 states:

Guideline 1.03 (Discovery Proportionality). The proportionality standard set forth in Fed. R. Civ. P. 26(b)(2)(C) and 26(g)(1)(B)(iii) should be applied to the discovery plan and its elements, including the preservation, collection, search, review, and production of ESI. To assure reasonableness and proportionality in discovery, parties should consider factors that include the burden or expense of the proposed discovery compared to its likely benefit, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in adjudicating the merits of the case. To further the application of the proportionality standard, discovery requests for production of ESI and related responses should be reasonably targeted, clear, and as specific as practicable.

The key to proportionality discussions is the non-binding nature of any concessions made, and a general staged-approach to discovery, starting small, without waiver of rights to ask for more discovery, or to object to later discovery. Again, quoting Judge Nolan in Kleen Products[T]o the extent possible, discovery phases should be discussed and agreed to at the onset of discovery. Parties should at least be able to reach an agreement as to how the first stage of discovery will be conducted and defer for later discussion any additional discovery that either side may seek. Phasing is also included in the California Checklist.

Judge Grimm’s Discovery Order

Judge Paul Grimm’s has created a standing Discovery Order, which knowledge he enters in every case before him in District Court in Maryland. The order embodies the proportionality doctrine as a mandatory cooperation between parties and their counsel. The Order also includes dividing all discovery into phases.

Moreover, Judge Grimm’s Order specifies that any discovery is disproportional that exceeds certain specified limits, at least to phase one discovery. These phases are also defined in the Order. Any discovery beyond the permitted scope is forbidden absent a motion establishing good cause and an order from the court. The specified limits of proportionality for phase one discovery are:

  • RFPs shall have no more than 15 categories of documents.
  • Only 10 custodians shall be searched.
  • ESI more than 5 years old shall not be included.
  • Only reasonably accessible sources shall be searched.
  • No more than 160 hours shall be expended for search and review services, which are in turn specifically identified to include:
    • identifying potentially responsive ESI,
    • collecting that ESI,
    • searching that ESI (whether using properly validated keywords, Boolean searches, computer-assisted or other search methodologies), and
    • reviewing that ESI for responsiveness, confidentiality, and for privilege or work product protection.

Judge Grimm’s Order goes on to specify that:

The producing party must be able to demonstrate that the search was effectively designed and efficiently conducted. A party from whom ESI has been requested must maintain detailed time records to demonstrate what was done and the time spent doing it, for review by an adversary and the Court, if requested.

Parties requesting ESI discovery and parties responding to such requests are expected to cooperate in the development of search methodology and criteria to achieve proportionality in ESI discovery, including appropriate use of computer-assisted search methodology.

These are meaningful requirements, especially since they are embodied in a court order. This kind of detail provides a good opportunity for a judge to sniff out who the true cooperators in a case are. It allows them to see through the facade of lies they are often presented with, where both sides accuse the other of being uncooperative. Sometimes that is true, sometimes both are non-cooperators, but sometimes one side is making a bona fide good faith effort to cooperate, and the other side simply refuses. As we like to say in litigation, it takes two to tango. If the other side is stuck in a scorched earth discovery tactic mentality, they will never truly cooperate, but they may pretend in order to try to fool the judge. We’ve seen this kind of tactic for years, especially by lawyers who suffer from ego inflation and like to egg their clients on by puffing about how aggressive and tough they are. It is not only immature. It is unethical. The best practice for discovery is Cooperation, and in Judge Grimm’s court that is mandatory.

To make sure the Cooperation requirement is clear Judge Grimm specifies in his Order that:

[T]he parties and counsel are expected to work cooperatively during all aspects of discovery to ensure that the costs of discovery are proportional to what is at issue in the case, as more fully explained in Mancia v. Mayflower Textile Services Co., 253 F.R.D. 354, 357–58 (D. Md. 2009). The failure of a party or counsel to cooperate will be relevant in resolving any discovery disputes, including whether the Court will permit discovery beyond Phase 1 Discovery and, if so, who shall bear the cost of that discovery. Whether a party or counsel has cooperated during discovery also will be relevant in determining whether the Court should impose sanctions in resolving discovery motions.

 Preservation

The proportionality discussions should also apply to the parties preservation efforts. See The Sedona Conference® Commentary on Proportionality, October 2010. This is specifically mandated by the California Guidelines at 2.01(b):

In determining what ESI to preserve, parties should apply the proportionality standard referenced in Guideline 1.03. The parties should strive to define a scope of preservation that 2 is proportionate and reasonable and not disproportionately broad, expensive, or burdensome.

This is also specified in Judge Grimm’s Order at paragraph seven which states:
In resolving any issue regarding whether a party has complied with its duty to preserve evidence, including ESI, the Court will consider, inter alia:
i. whether the party under a duty to preserve (“Preserving Party”) took measures to comply with the duty to preserve that were both reasonable and proportional to what was at issue in known or reasonably-anticipated litigation, taking into consideration the factors listed in Fed. R. Civ. P. 26(b)(2)(C); . . .
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More detailed descriptions of proportionality related best practices for Cooperation in litigation will follow. In the meantime, if you have any suggestions and care to contribute to this project, or any questions (nothing case specific please), please leave a comment below.