Discovery Proportionality Model: A New Framework

The Discovery Proportionality Model: A New Framework is the only tool that fully implements the proportionality requirements under Rule 26(b)(1) and Rule 26(g)(1)(B)(iii). It provides a standard methodology that better informs the assessment of whether discovery is proportional to the needs of a case, considering  the importance of the issues at stake, the amount in controversy, the importance of the discovery in resolving the issues, and whether the burden and expense of the proposed discovery outweighs its likely benefit.    

The user’s assessments are recorded on a matrix-formatted “discovery roadmap,” which include the user’s estimates of discovery costs for every custodian with relevant information on various data sources (devices), and estimates of burden, benefits, and costs. A bottom-line overall discovery cost is estimated in relation to the amount in controversy and the importance of the issues at stake. The discovery roadmap provides a transparent record of the user’s estimates and assessments.

A team of more than 50 experts developed an excel spreadsheet with more than 100 lines of itemizations, which a user may estimate costs in discovering information from five separate data sources, including email, files shares, social media, laptop computers, and mobile devices. The cost calculators in Appendices F and J are the most sophisticated of their kind.

Using the same calculators, the team calculated its own estimates of benefits, costs, burdens, and numbers of gigabytes per data source, which they most often handle in typical cases based on averages developed consistent with their collective experience and a literature review.  Lastly, the team estimated discovery costs proportional in relation to the amount in controversy and adjustments for the importance of the issues at stake based on several studies.

The team’s collective judgments are intended to provide reasonable cost and burden benchmarks. And for the first time, benchmark-cost estimates are provided for five separate data sources. A user can delete all the inputted estimates and insert their own estimates, or a user can pick and choose which line-item costs to adjust.  The calculators instantaneously recompute the total costs.