Optimum Proportionality Ediscovery Standard bench-bar leadership Conference

Optimum Proportionality Ediscovery Standard Virtual on-line bench-bar leadership Conference

“Unless both sides try to understand the legitimate concerns of the opposing side and are open to compromises, like Sisyphus they are bound to ceaselessly struggle searching for all possibly relevant documents on all conceivably relevant data sources, simultaneously contesting searches on subjective proportionality grounds with unpredictable results.”

March 28, 2024

The Center will hold an online virtual bench-bar leadership conference addressing the Optimum Proportionality Ediscovery Standard (OPES) on March 28, 2024. Download OPES Document. There is no registration fee for the conference, although a $100 administrative fee will be charged for those seeking CLE credit.

The purpose of the conference is to examine the OPES proposals. Please join eight federal judges and ten plaintiff and defense attorneys and other experts provide critical analysis.

OPES has four main proposals:

It limits discovery to ESI that is important in resolving the issues, the so-called “marginal-utility” test.
It promotes standard best practices encouraging cooperation and collaboration between the parties to arrive at a “meeting of the minds” on the importance of documents in resolving the issues.
It proposes an enhanced validation process, including disclosure of all documents in a random sampling of nonresponsive documents.
It proposes a judicial in camera examination of documents that the defendant withholds from the random sampling of nonresponsive documents.

None of these proposals alone is novel. The DOJ Antitrust Division, the FTC, and the bench and bar in three mass-tort MDLs have used variations of the same approach to handle large volumes of ESI, for example, 2.5 million documents produced in the Biomet MDL and 3 million documents produced in the Allergan MDL.

Meanwhile, equally large volumes are being produced in other complex cases facilitated by new technology. The current practice of searching for all possibly relevant ESI is no longer sustainable in a large portion of the federal civil docket, with more than 24% of annual filings comprised of actions in MDLs and a growing number of similarly complex actions regularly joining the group.

OPES offers a compromise solution with tradeoffs for both sides. At its core, OPES addresses the root cause why parties insist on an exhaustive review of millions of inconsequential documents.

In the first place, every lawyer on the opposing and even on the same side disagrees on whether individual documents are relevant.
The result is that plaintiffs cannot accept at face value the defendant’s decisions that documents are not responsive, because without seeing them, they have no real assurance that the documents excluded by the defendant are in their view important in resolving the issues.
That means that no matter how thorough and well-run the defendant’s discovery process nor how cooperative the defendant, plaintiffs justifiably will continue to resist any efforts at limiting the production of all possibly relevant documents so that they can classify the documents themselves. And that explains the root cause of the problem.
Under OPES, the plaintiff can determine for themselves whether documents important in resolving the issues were misclassified by the defendant by viewing the nonresponsive documents in the validation sample, while the defendant can meet its concerns by withholding nonresponsive documents in a judicial in camera exmination.

OPES raises practical challenges, but they pale in comparison to the challenges raised under the current practices, which makes reviewing terabytes of data, each consisting of more than 20 million documents, impossible.

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For convenience purposes, the “requesting party” is referred to as the “plaintiff” and the “responding party” is referred to as the “defendant,” recognizing that both parties can play either role in individual cases.

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

There is no registration fee for the conference, but you must register to receive the log-in information to join the conference virtually. A $100 administrative fee is charged if you plan to submit a request for CLE credit, payable by credit card below.

CLE

The state of New Jersey approved the conference for six (6.0) CLE credits.

Conference Details

Agenda

VIRTUAL ON-LINE (All Times Eastern Time Zone)

March 28, 2024

10:15 am – 10:30 am

Welcoming Remarks

John Rabiej, Founder & President, Rabiej Litigation Law Center

10:30 am – 11:45 am

Panel 1: Ediscovery Standard – Focusing on Rule 26(b)(1) “Importance of Requested Ediscovery in Resolving the Issues”

Moderator: Professor Thomas Main, University of Nevada, School of Law

Mark Lyon, Williams & Connolly
Honorable Iain Johnston, Northern District of Illinois
Honorable David Schultz, District of Minnesota (Bair Hugger MDL 2666)
Honorable Andrew Peck (ret.) DLA Piper LLC

12:15 pm – 1:30 pm

Panel 2: Parties’ Identification of Documents Important in Resolving the Issues

Moderator: Professor Thomas Main, University of Nevada, School of Law

Honorable Xavier Rodriguez, Western District of Texas
Caragh Landry, TCDI
Matthew Poplawski, Hilgers Graben PLLC
William Belt, CDS

1:40 pm – 2:55 pm

Panel 3: Means to Validate Documents Important in Resolving the Issues, Including Random Sampling and Information-Science Algorithms, Etc.

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

Christopher Costello, Kirkland & Ellis LLP
Michelle Six, Gunster (3M Combat Earplug MDL 2885)
Jeremy Pickens, Redgrave Data
Honorable Lee Rosenthal, Southern District of Texas
Kelly Iverson, Lynch Carpenter LLP

3:05 pm – 4:20 pm

Panel 4: Disclosing Non-Responsive Documents in Random-Sample Validation, Except for Documents Selected for an In Camera Examination by a Judge

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

Honorable Gary Jones, Northern District of Florida (3M Combat Earplug MDL 2885)
Honorable Michael North, Eastern District of Louisiana (Taxotere MDL 2740)
Honorable Rukhsanah L. Singh, District of New Jersey (J & J Talcum Powder MDL and Insulin Pricing MDL)
David Cohen, Reed Smith LLP
Syreeta Poindexter, Babin Law LLC

4:25 pm ADJOURNMENT

Panelists

Panelist Profiles

Moderators

Professor Thomas Main, University of Nevada, School of Law
Professsor Steven Gensler, University of Oklahoma, College of Law

Panelists

Hon. Iain Johnston, Northern District of Illinois
Hon. Xavier Rodriguez, Western District of Texas
Hon. David Schultz, District of Minnesota (Bair Hugger MDL 2666)
Hon. Lee Rosenthal, Southern District of Texas
Hon. Gary Jones, Northern District of Florida (3M Combat Earplug MDL 2885)
Hon. Michael North, Eastern District of Louisiana (Taxotere MDL 2740)
Hon. Rukhsanah L. Singh, District of New Jersey (J & J Talcum Powder MDL and Insulin Pricing MDL)
Hon. Andrew Peck (ret.) DLA Piper LLP
Mark Lyon, Williams & Connolly LLP
William Belt, CDS
Michelle Six, Gunster
Jeremy Pickens, Redgrave Data
Caraghy Landry, TCDI
Christopher Costello, Kirkland & Ellis LLP
David Cohen, Reed Smith LLP
Syreeta Poindexter, Babin Law LLC
Matthew Poplawski, Hilgers Graben PLLC
Kelly Iverson, Lynch Carpenter LLP

Materials

General Materials

Optimum Proportionality Ediscovery Standard (OPES) 30-Page Draft, Details
Three-Page Summary of OPES, Details
New Framework Ediscovery Cost Calculator, Appendix F Details
New Framework TAR Cost Calculator, Appendix J Details

Panel 1: Ediscovery Standard – Focusing on Rule 26(b)(1) “Importance of Requested Ediscovery in Resolving the Issues”

Microsoft Inverted Pyramid Illustrating Root of Ediscovery Problem, Details
Excerpt from OPES Addressing Root of Ediscovery Problem, Details
Research on Cases Addressing Marginal-Utility Test, Details

Panel 2: Parties’ Identification of Documents Important in Resolving the Issues

Excerpt from OPES on Process Identifying Documents Important in Resolving the Issues, Details
Allergan MDL No. 2921, Case Management Order No. 22 (October 25, 2022) (Failure to Validate Documents Omitted as Non-Responsive in Key-Word Culling Before TAR Review), Details
Allergan MDL No. 2921, Case Management Order No. 30, pp. 4-5 (August 22, 2023) (All Documents Are Relevant, But Only Important Documents Subject to Production), Details
Excerpt from Sedona Conference Commentary on Proportionality in Electronic Discovery and New Framework Custodian Survey Exemplar Providing Guidance on Distinguishing Significant Relevant Information, Details
Excerpts from Other Organizations Publications and Judges’ Orders Providing Guidance on Prioritizing Custodians with Relevant Information, Details
New Framework, Rabiej Litigation Law Center, Details
Doug Austin, 2024 State of the Industry Report, eDiscovery Today (Survey of, Among Other Things, TAR Use and Discovery of Data on Mobile Devices), Details

Panel 3: Means to Validate Documents Important in Resolving the Issues, Including Random Sampling and Information-Science Algorithms, Etc.

Excerpt from OPES on Enhanced Validation Process, Details
Four Years After Duke: Where Do We Stand on Calibrating the Pretrial Process? Vol.18:3 Lewis & Clark Law Review 643, 663 (2014), Steven Gensler & Lee Rosenthal, Details
Allergan MDL No. 2921, Case Management Order No. 33 (January 16, 2024) (Random-Sampling Validation Procedure Adopted by Court), Details
Time to Retire TAR, Herbert Roitblat, pages 3-9 address disagreements distinguishing relevant and nonrelevant documents, Details
There Is No One Size Fits All Sample Size Appropriate for TAR Validation (Part II), Lilith Bat-Leah, Association of Certified E-Discovery Specialists (ACEDS) (March 12, 2020), Details
Department of Justice, Antitrust Division, TAR Model Agreement, Details

Panel 4: Disclosing Non-Responsive Documents in Random-Sample Validation, Except for Documents Selected for an In Camera Examination by a Judge

Excerpt from OPES on “Sensitive-Information” Log Procedure, Details
Allergan MDL No. 2921, Case Management Order No. 31 (September 7, 2023) (Random Sampling of 750 Non-Responsive Documents; Defendant Given Opportunity to Withhold Selected Documents for Review by Special Master), Details
Allergan MDL No.2921, Plaintiffs’ Brief (August 26, 2022) (Addresses Layering Key-Word Culling and TAR Review and Failure to Validate Keyword Culling, fn. 3), Details
Microsoft Inverted Pyramid Ediscovery, Details

Registration