CO-HOSTED BY GEORGE WASHINGTON UNIVERSITY HUMPHREYS COMPLEX LITIGATION CENTER
Held on April 13-14, 2023
The Center’s recent “Ediscovery at a Crossroads” bench-bar conference at GW on April 13-14 was a remarkable event. Practitioners, ediscovery experts, and judges engaged in the highest level of discussion, searching for some kind of way to reconcile the objections to ediscovery proportionality that would benefit both sides.
Many plaintiff lawyers recoil, with some justification, from any form of proportionality, because they view it as a means for the defense to limit their essential ediscovery based primarily or solely on claims of cost or burdens. Many defense lawyers counter, with some justification, that proportionality invites unproductive squabbling over and production of inconsequential costly ediscovery.
A Way Out
Picture a small circle that represents core or essential information that is needed to argue a case, e.g., information from 15 custodians. Picture an outer ring that represents the universe of all relevant information within the larger circle, e.g., information from 50 custodians.
The concept of the Rule 26(b)(1) proportionality factors was well intentioned as an analytical means to limit the information discoverable from that larger circle. But the different applications of the rule have led to unpredictable outcomes and waste.
Some courts apply the Rule 26(b)(1) proportionality factors to the universe of relevant information, working from the outer ring to the interior core circle and rule on the discoverability of each custodian and data source. The goal is reasonable, but not practical nor efficient from the start because of the volume, which has led to unproductive bickering over discovery of inconsequential relevant information within the outer circle.
Any doubt about the futility of such an outside-inside analysis has been removed by technology’s march constantly expanding both circles, as new data sources are regularly created, exponentially adding volume to today’s already voluminous emails, text messages, and data from laptops, cell phones, files, slack, teams, and databases. Any well-intentioned attempt to screen all potentially relevant information from discrete persons and data sources is not practical nor feasible.
Inside-Outside Marginal-Utility Analysis
Many judges have quietly turned to a common-sense approach focusing on what truly is important as a fair means to get the ediscovery that plaintiffs need in an efficient manner. When more ediscovery is requested, judges commonly ask two questions: “Do you really need the information, and why?”
These courts start with a review of ediscovery produced from the inner circle and then move on to relevant information immediately outside the inner core circle, determining whether any significant and different information would be uncovered. If no significant and different information is likely to be found the inquiry ends.
Instead of searching for potentially relevant information in an ever-growing universe of data and then slowly constricting that circle by applying the proportionality factors, these judges work from the inside circle to the outside ring, focusing always on information that is important to the plaintiff while relieving the defense from boiling the oceans in a futile effort to review and screen all potential relevant information, no matter how inconsequential.
A Way Forward
The inside-outside analysis is not novel and has a long history, starting with the adaptation of Adam Smith’s marginal-utility test of diminishing returns.
Judges, commentators, think-tanks, and other organizations, including the Center, have promoted the inside-outside marginal-utility analysis though perhaps under different names. (Click Here) Some focus on key custodians or players, or centering exercises. Others set out a definite number of custodians as the inner circle and limit discovery of those outside the limits on a good-cause showing.
The common theme is to get the ediscovery that is needed to make the case and cut off further ediscovery of additional custodians who are unlikely to have significant and different information.
Center’s Next Steps
The case law (Click Here) and testimonies from practitioners and ediscovery consultants and other experts show that many in the bench and bar have turned to a practical framework and focus on how significant the sought-after ediscovery information is as a threshold relevancy matter, while leaving room for consideration of Rule 26’s “cost,” “burden,” and “importance of the interests at stake” in appropriate circumstances.
They have turned to this practical course of action as a meaningful way to resolve ediscovery issues instead of mechanically applying a list of amorphous proportionality factors with no attributed weight and little context. Under this approach, neither cost/burdens nor the importance of the interests at stake or other proportionality factors can take a dominant position until the significance of the sought-after ediscovery is first established.
A team of practitioners and ediscovery experts have been developing best practices implementing the inside-outside marginal-utility standard under the Center’s aegis. The Center’s best practices will continue to refine this approach. Active judicial case management and party cooperation undoubtedly facilitate achieving this goal, and the best practices will promote them.
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.”
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). Early-bird registrations, in-house, and company discounts available. See below under Registration tab.
New Jersey has approved 7.6 CLE credits. 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.
Ediscovery Legal Standards and Party Obligations Under the Federal Rules of Civil Procedure, Rabiej Litigation Law Center, View Details
Excerpt from Sedona Conference Commentary on Proportionality in Electronic Discovery and New Framework Custodian Survey Exemplar Providing Guidance on Distinguishing Significant Relevant Information, View Details
Excerpts from Other Organizations Publications and Judges’ Orders Providing Guidance on Prioritizing Custodians with Relevant Information, View Details
Panel 2: How Judges Decide Disputes About How Many Custodians, What Volume of ESI, and Which Data Sources to Search in Ediscovery
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
Two Rule 26(b)(1) Proportionality Factors Evaluated Out of Context Prejudices Party, View Details
Work-in-Progress Guidelines and Best Practices Identifying and Prioritizing Relevant ESI, Rabiej Litigation Law Center, View Details
Thomas v. City of New York, 336 F.R.D. 1 (EDNY 2020) (requiring modicum of proof from the producing party that no significant unique information would be found from discovery of additional custodians), View Opinion
Panel 5: Mandatory Consultations and Cooperation in Return for Cap on Discovery Spend – Bold New Voluntary Ediscovery Protocol
Work-in-Progress Voluntary Protocol, Rabiej Litigation Law Center, View Details
If you have seven or more years of experience in ediscovery, you may register directly online.
The registration fee for in-house counsel, ediscovery providers and consultants whose companies do not provide a budget for continuing education and training is $250.
Please check the “Other Registration” box under “Registration Type” and insert the discounted fee amount.
"*" indicates required fields
The Rabiej Litigation Law Center gratefully acknowledges the financial support of its PATRONS for the year 2023, whose contributions made this conference possible. General sponsorships levels for individual conferences from $2.5K to $10K are described at Click Here. Friends of the Center sponsorships for sums less than $2.5K are also available. Additional sponsorship opportunities for this conference include: (i) Thursday-Reception Sponsor ($4,000); (ii) Faculty-Dinner Sponsor ($3,000); and (iii) Breakfast Sponsor ($2,000). For more details, please contact John Rabiej at https://rabiejcenter.org/contact/
TCDI (Technology, Concepts & Design, Inc.)
Litigation Management, Inc.
Alvarez & Marsal
SPONSORS OF CONFERENCE
Friends of the Center
Complete Discovery Source (CDS)
SBS Strategic Business Solutions PLLC
Bobbi, Basille — InsightOptix
Hon. Baylson, Michael — Eastern District of Pennsylvania
Belt, William — Complete Discovery Source (CIS)
Hon. Bissoon, Cathy — Western District of Pennsylvania
Bojar, Chris — Barack Ferrazzano Kirschbaum & Nagelberg LLP
Culberston, Scott — Redgrave Strategic Data Solutions LLC
Hon. Facciola, John – Georgetown University
Professor Gensler, Steven – University of Oklahoma
Hobbs, David – Fleming, Nolen & Jez LLP
Hon. Johnson, Kimberly Priest – Eastern District of Texas
Hon. Jones, Gary – Northern District of Florida
Jones, Rose – King & Spalding
Hon. Jordan, Sean – Eastern District of Texas
Jurist, Adam — Wilson Sonsini Goodrich & Rosati
Kohrs, Nicholas — Lundy Lundy Soileau & South LLP
Lange, Michelle – Volkswagen America
Lowe, Anthony – Data Law PLLC
Lowenthal, Marvin – Cohen & Gresser LLP
Hon. Meriweather, Robin – District of District of Columbia
Meyers, Briordy — Google
Hon. Mitchell, Angel – District of Kansas
Mitchell, Gale — Rabiej Litigation Law Center
Mingst, Candy — Barnes & Thornburgh
Professor Morrison, Alan – George Washington University
Oliver, Alyson — Oliver Law Group PC
Orent, Jon – Motley & Rice
Hon. Peck, Andrew – (ret.) DLA Piper
Pepe, Douglas – Cohen & Gresser LLP
Rabiej, John — Rabiej Litigation Law Center
Redgrave, Jonathan – Redgrave LLP
Hon. Rodriguez, Xavier – Western District of Texas
Rosenthal, John — Winston & Strawn LLP
Ross, Mandi — InsightOptix
Scavelli, Michael – Steptoe & Johnson LLP
Scott, Dana — Travelers
Sherbet, Madeline — Shook, Hardy & Bacon LLP
Shortnacy, Michael – King & Spalding
Smith, Suzanne – Porter & Malouf PA
Theis, Adriane – Reisman Greene Theis LLP
Hon. Thorson, Becky – District of Minnesota (ret.)
Trangsrud, Roger — George Washington University
Tucker, John – King & Spalding
Unice, John – bit-x-bit LLC
Waldron, Jim — Rabiej Litigation Law Center
Wood, Canby — LexFusion
Zimmerman, Genevieve – Meshbesher & Spence
New Jersey has approved 380 minutes (7.6 CLE credits) for attending the Ediscovery at a Crossroads conference on April 13-14, 2023.
For those seeking CLE credit, you should complete the signed “Uniform Certificate of Attendance,” which was included as a handout at the conference, and submit it to your state bar to receive CLE credit. Several states have reciprocity with New Jersey, which means that you will need only to submit the “Certificate of Attendance.” The “Notification of CLE Course Accreditation” from New Jersey will also be included as a handout at the conference. If you need either certificate, please submit your request to Click Here.
For those states that do not extend reciprocity, you will also need to submit the “Uniform Application for Approval of Continuing Legal Education.” Click Here. This form requires you to attach: (i) Time Schedule/Agenda; (ii) Table of Contents; (iii) Faculty Description; (iv) Complete Set of Materials, and (v) Fees. The requested information is posted on this site under the Agenda, Panelists (including Panelists’ Bios), Materials, and Registration tabs below Conference Details.
A handful of states require their own forms or additional information. If they require additional information, please send a request to Click Here along with the requested information.