Rabiej Litigation Law Center
HomeEventsEDISCOVERY CONFERENCE

EDISCOVERY CONFERENCE

EDISCOVERY AT A CROSSROADS CONFERENCE [Invitation-Only]

CO-HOSTED BY GEORGE WASHINGTON UNIVERSITY HUMPHREYS COMPLEX LITIGATION CENTER

April 13-14, 2023

Judges and lawyers have been spinning their wheels for years trying vainly to comply with Rule 26(b)(1). Judges complain that lawyers fail to provide useful information in determining whether discovery is proportional to the needs of the case.  While lawyers complain that judges fail to indicate which of the six Rule 26(b)(1) proportionality factors take precedence.

The bench-bar “Ediscovery at a Crossroads” conference will address the inconsistent application of the Rule 26(b)(1) proportionality standard, which has precluded predictable ediscovery rulings.  It will examine the development of best practices, which simplify and facilitate the decision making regarding what to search and when to stop, that are fair to both sides. The conference aims to answer the age-old questions from judges in discovery disputes, what do you need and why?

Recent caselaw shows greater awareness of Rule 26’s proportionality requirements, but with little guidance, the bench and bar continue to struggle implementing it meaningfully. At a crossroads after 40 years of limited success, it is time to seriously reassess how ediscovery is being managed and determine whether the continued inefficiencies and expense can be reduced either by doubling down on the proportionality requirements, clarifying the “marginal-utility” test employed in many cases, or developing a bold new voluntary ediscovery protocol.

To focus the discussion, every conference panel will bear in mind a not unusual fact pattern involving five custodians who likely may possess or control significant or unique relevant information, five to ten custodians who may possess or control new significant or unique relevant information, and thirty other custodians who unlikely possess or control new significant or unique relevant information.  Every custodian has multiple data sources on which relevant information may be located.  

This conference will examine current ediscovery practices, including the extent to which parties and courts follow the Rule 26(b)(1) proportionality analysis and the alternative marginal-utility test employed in a case when the “amount in controversy” and “importance of the issues at stake” have less weight than the other factors as well as a voluntary ediscovery protocol that is designed to benefit both plaintiffs and the defense, but with compromises.

The first panel of lawyers will discuss how they address the Rule 26(b)(1) proportionality factors in a discovery dispute. The second panel of four judges will discuss what types of proportionality presentations they typically hear from lawyers in discovery disputes. Both panels will address how infrequently the “importance of the issues at stake” and the “amount in controversy” factors are thoroughly evaluated in discovery disputes.

The third and fourth panels will address practices applying the marginal-utility and unreasonably cumulative standards when the “importance of the discovery in resolving the issues” is the primary factor addressed by the lawyers.  The goal is to answer the age-old questions from judges: “What do you need in discovery and why?” The use of the New Framework’s metrics, including its “heat map” and its classifications of custodians by the importance of the discoverable information that they possess or control as well as cost calculators, will be applied to assess whether the discovery is “unreasonably” cumulative. Other factors will be considered in the analysis.

The fifth panel will introduce a new ediscovery protocol, which offers the plaintiffs mandatory party cooperation as well as significant control over what and how ediscovery is conducted in return for a fixed cap on the amount of money spent on ediscovery by the producing party — ediscovery exceeding the cap is paid by the requesting party.  The protocol would kick in when discovery is likely, e.g., after the motion-to-dismiss stage.  The New Frameworks’ cost calculators and metrics estimating the amount in controversy and importance of the issues at stake will be examined as possible benchmarks.

Ten experienced judges and more than 15 practitioners and other experts will address these issues on five panels. This is an invitation-only conference, and all attending are expected to engage in discussion with the panels.  Half of each panel’s time is reserved for give-and-take discussions between the panel and audience.  Thirty-minute breakout sessions for plaintiffs and defense practitioners end the conference.

Registration information is given below. Lawyers and other legal experts with seven or more years of experience who would like to attend the conference should send a brief note describing their professional background to contact@rabiejcenter.org.

Chatham House Rule

The conference will be held under the Chatham House Rule: “[P]articipants are free to use the information received, but neither the identity nor the affiliation of the speaker(s), or that of any other participant, may be revealed.”

Registration

The registration fee for the conference is $899, which includes conference materials, a continental breakfast, coffee breaks, lunch, a group reception on Thursday evening, and grab-and-go snacks at adjournment. Two or more lawyers registering from the same law firm receive major discounts (single registrant – $ 899; second registrant – $650; and third and each additional registrant – $500).

CLE

CLE will be applied for in New Jersey. Attorneys will receive a Certificate of Attendance and a completed Uniform Application for Accreditation form after the conference in order to submit CLE hours to their state.

Conference Details

  • Agenda
  • Panelists
  • Materials
  • Registration
  • Patrons & Sponsors
Agenda

2:30 pm – 2:45 pm 

Welcoming Remarks

  • John Rabiej, Founder & President, Rabiej Litigation Law Center
  • Professor Roger Trangsrud, George Washington University School of Law

2:50 pm – 4:05 pm 

Panel 1: How Producing Party Decides How Many Custodians, What Volume of ESI, and Which Data Sources to Search in Ediscovery.

Moderator: William Belt, Complete Discovery Solutions (CDS) 

  • Andrew Cosgrove, Technology, Concepts & Design (TCDI)
  • Plaintiff
  • Mandi Ross, InsightOptix

4:10 pm – 5:30 pm 

Panel 2: How Judges Decide Disputes About How Many Custodians, What Volume of ESI, and Which Data Sources to Search in Ediscovery.

Moderator: Professor Alan Morrison or Roger Trangsrud, Complex Litigation Center, George Washington University Law School

  • Hon. Gary Jones, Northern District of Florida
  • Hon. Kimberly Priest Johnson, Eastern District of Texas
  • Hon. 
  • Hon. Michael Baylson, Eastern District of Pennsylvania

6:00 pm – 7:30 pm 

Reception, Heavy Horderves

7:30 am – 8:30 am  

Breakfast

8:30 am – 9:45 am

Panel 3: Defining Marginal-Utility and Unreasonably-Cumulative Standards in Assessing Discoverable Custodians, Volume of ESI, and Data Sources

Moderator: Professor Alan Morrison or Roger Trangsrud, Complex Litigation Center, George Washington University Law School

  • Hon. Xavier Rodriguez, Western District of Texas
  • Hon. 
  • Plaintiff

9:45 am – 10:00 am

Break

10:00 am – 11:15 am

Panel 4: Applying Marginal-Utility and the Unreasonably Cumulative Standards and Burden of Proof in Assessing Discoverable Custodians, Volume of ESI, and Data Sources

Moderator: Professor Steven Gensler, College of Law, University of Oklahoma 

  • Hon. Sean Jordan, Eastern District of Texas
  • Hon. Becky Thorson, District of Minnesota (ret.) 
  • David Hobbs, Fleming, Nolen & Jez, LLP
  • Michael Shortnacy, King & Spalding

11:20 am – 12:35 pm

Panel 5: Mandatory Consultation and Cooperation in Return for Cap on Discovery Spend – Bold New Voluntary Discovery Protocol

Moderator: Professor Steven Gensler, College of Law, University of Oklahoma School

  • Hon. Cathy Bissoon, Western District of Pennsylvania
  • Adriane Theis, Reisman Karron Greene LLP 
  • Plaintiff
  • Michael Scavelli, Steptoe  & Johnson LLP

12:35 pm – 1:05 pm 

Breakout Sessions for Plaintiff and Defense

1:05 pm  ADJOURNMENT – Grab-and-Go Snacks

Panelists

Moderators

  • William Belt, Complete Discovery Solutions (CDS)
  • Professor Steven Gensler College of Law, University of Oklahoma
  • Professor Alan Morrison, George Washington University, School of Law

Panelists

  • Hon. Michael Baylson, Eastern District of Pennsylvania
  • Hon. Cathy Bissoon, Western District of Pennsylvania
  • Kimberly Priest Johnson, Eastern District of Texas
  • Ho. Sean Jordan, Eastern District of Texas
  • Hon. Gary Jones, Northern District of Florida
  • Hon. Xavier Rodriguez, Western District of Texas
  • Hon. Becky Thorson, District of Minnesota (ret.)
  • Hon.
  • Hon.
  • Hon.
  • Adriane Theis, Reisman Karron Greene LLP
  • Andrew Cosgrove, Technology, Concepts & Design (TCDI)
  • Michael Shortnacy, King & Spalding
  • David Hobbs, Fleming, Nolen & Jez LLP
  • Michael Scavelli, Steptoe & Johnson LLP
  • Mandi Ross, InsightOptix
Materials

Panel 1:  How Producing Party Decides How Many Custodians, What Volume of ESI, and      Which Data Sources to Search in Ediscovery

Panel 2: How Judges Decide Disputes About How Many Custodians, What Volume of ESI, and Which Data Sources to Search in Ediscovery

Panel 3: Defining Marginal-Utility and Unreasonably-Cumulative Standards in Assessing Discoverable Custodians, Volume of ESI, and Data Sources

Panel 4: Applying Marginal-Utility and the Unreasonably-Cumulative Standards and Burden of Making a Showing in Assessing Discoverable Custodians, Volume of ESI, and Data Sources

Panel 5: Mandatory Consultations and Cooperation in Return for Cap on Discovery Spend – Bold New Voluntary Ediscovery Protocol

Registration

Requests to register for invitation-only conference should be sent to contact@rabiejcenter.org with a brief description of at a minimum of seven years’ experience with ediscovery.

Patrons & Sponsors

The Rabiej Litigation Law Center gratefully acknowledges the financial support of its PATRONS for the year 2023, whose contributions made this conference possible.

Founding Member  — Western Alliance Bank

Premier Patron – TCDI (Technology, Concepts & Design, Inc.)

Patrons

  • Litigation Management, Inc.
  • Alvarez & Marsal

Friends of the Center – CDS (Complete Discovery Source, Inc.)

Scroll Back to Top