EDISCOVERY AT A CROSSROADS CONFERENCE
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.
Outside-Inside Analysis
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.”
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). Early-bird registrations, in-house, and company discounts available. See below under Registration tab.
CLE
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.
Conference Details
- Agenda
- Panelists
- Materials
- Registration
- Sponsors
- Attendees
- CLE
Jacob Burns Moot Courtroom
2000 H St. NW, Corner of 20th and H Streets NW
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 Source (CDS)
- Andrew Cosgrove, Technology, Concepts & Design (TCDI)
- Jonathan Orent, MotleyRice LLC
- Mandi Ross, InsightOptix
- John Rosenthal, Winston & Strawn LLP
- Hon. Andrew Peck (ret.) DLA Piper
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 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. Michael Baylson, Eastern District of Pennsylvania
- Hon. Angel Mitchell, District of Kansas
- Hon. John Facciola, District of District of Columbia (ret.)
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, Complex Litigation Center, George Washington University Law School
- Hon. Xavier Rodriguez, Western District of Texas
- Hon. Robin Meriweather, District of District of Columbia
- Kaitlin Bridges, Gray Ritter Graham
- Michelle Lange, Volkswagen Group of America
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
- John Unice, bit-x-bit, LLC
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
- Emery Lee, Federal Judicial Center
- Adriane Theis, Reisman Karron Greene LLP
- Michael Scavelli, Steptoe & Johnson LLP
- Genevieve Zimmerman, Meshbesher & Spence Lawyers
12:35 pm – 1:05 pm
Breakout Sessions for Plaintiff and Defense
1:05 pm ADJOURNMENT – Grab-and-Go Snacks
Panelist Bios, View Details
Moderators
- William Belt, Complete Discovery Source (CDS)
- Professor Steven Gensler College of Law, University of Oklahoma
- Professor Alan Morrison, George Washington University, School of Law
- Professor Roger Trangsrud, George Washington University, School of Law
Panelists
- Hon. Michael Baylson, Eastern District of Pennsylvania
- Hon. Cathy Bissoon, Western District of Pennsylvania
- Hon. Kimberly Priest Johnson, Eastern District of Texas
- Hon. 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. Robin Meriweather, District of District of Columbia
- Hon. Andrew Peck (ret.) DLA Piper
- Hon. Angel Mitchell, District of Kansas
- Hon. John Facciola, District of District of Colombia (ret.)
- 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
- Genevieve Zimmerman, Meshbesher & Spence Lawyers
- Michelle Lange, Volkswagen Group of America
- Jonathan Orent, MotleyRice LLP
- Kaitlin Bridges, Gray Ritter & Graham
- John Unice, bit-x-bit, LLC
Panel 1: How Producing Party Decides How Many Custodians, What Volume of ESI, and Which Data Sources to Search in Ediscovery
- Discovery Proportionality Primer, InsightOptix, View Details
- New Framework, Rabiej Litigation Law Center, View Details
- 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
- New Framework, Rabiej Litigation Law Center View Details
- Raine Group LLC v. Reign Capital (SDNY Feb. 22, 2022) (discussing burden of making a showing), View Details
- Edwards v. Mcdermott Int’l (SD Tex Nov. 4, 2021) (number of custodians), View Details
- Edwards v. Mcdermott Int’l (SD Tex May 18, 2022) (keyword selection), View Details
Panel 3: Defining Marginal-Utility and Unreasonably-Cumulative Standards in Assessing Discoverable Custodians, Volume of ESI, and Data Sources
- Research on Cases Addressing Marginal-Utility Test, View Details
- McPeek v. Ashcroft (DDC 2001), View Details
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.
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/
Premier Patron
- TCDI (Technology, Concepts & Design, Inc.)
Patrons
- Litigation Management, Inc.
- Alvarez & Marsal
- Epiq
SPONSORS OF CONFERENCE
Collaborator
- InsightOptix
Friends of the Center
- Complete Discovery Source (CDS)
- bit-x-bit, LLC
- 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
- Brenes, Troy — Brenes Law Group PC
- Bridges, Kaitlin – Gray Ritter & Graham
- Burrichter, Christopher — Dechert
- Carnevale, Vince – Milberg Coleman Bryson Phillips Grossman
- Carvo, Scott – Warner Norcross & Judd LLP
- Cosgrove, Andrew — Technology, Concepts & Design
- Cox, David — Volkswagen America
- 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.