Optimum Proportionality Ediscovery Standard bench-bar leadership Conference

Virtual On-line

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. There is no registration fee for the conference, although a $100 administrative fee will be charged to those seeking CLE credit.

Plaintiffs continue to press courts to require defendants to cooperate in the conduct of ediscovery to assure themselves that all information important in resolving the issues is obtained. Defendants object to micromanaging and interminable and pointless negotiations. Judges become increasingly frustrated.

The crux of the problem lies with the foundational ediscovery principles. Plaintiffs have objected to past attempts at making Rule 26(b)(1) proportionality more effective, because such efforts narrow the number of discoverable documents, which inevitably conceal relevant documents important in resolving the issues. Creating new restrictions, which would add to their burdens in defending against defendants’ reflexive objections on cost-benefit grounds, has been a nonstarter.

Yet, both plaintiffs and defendants agree that ultimately only a relatively small number of discoverable documents is important in resolving the issues. Neither side wants to unnecessarily expend resources reviewing insignificant relevant documents. This conference will explore the reasons for the impasse and a solution.

Studies have shown that lawyers on the opposing and even on the same side disagree in good faith on which documents are relevant, and the discrepancies are often wide and significant. Accordingly, plaintiffs strive to review all potentially relevant documents, or as many as the court permits, so that they can make their own decisions and not blindly rely on the defendants’ decisions classifying information relevant or not relevant. Meanwhile, the defendants object to interference in matters that traditionally are handled exclusively by them. The existing practices, which shift the burden to plaintiffs to raise deficiencies and missed-relevant documents, is unsound, because it creates an incentive for the plaintiff to get more involved in how the defendant conducts the ediscovery, which only exacerbates the present litigation wrangling.

OPES provides guidelines and best practices in ascertaining and validating that information important in resolving the issues is obtained in the ediscovery. In lieu of expanding the plaintiffs’ reach into how the defendant conducts ediscovery, OPES focuses on the results of the ediscovery.

The OPES model is based on an ediscovery protocol in the 3M Combat Earplug MDL, which was developed by a prominent plaintiff lawyer. It relies on random sampling of null sets, a quality-control method that courts and parties routinely apply to verify ediscovery results. But unlike other models, the 3M Protocol required the defendant to disclose all the documents in the sample, including those that the defendant deemed to be not relevant. Under OPES all documents are also subject to disclosure, however, the defendant may withhold documents for any reason, subject to an in camera examination by a judge. The accuracy and thoroughness of the ediscovery results, vouched for by an independent judicial review, is intended to obviate the plaintiff’s need to review all potentially relevant documents, while safeguarding the defendant’s sensitive information.

Four panels will address the following topics:

Panel 1 – Focusing on the Importance of Requested Ediscovery in Resolving the Issues as the Key Proportionality Factor
Panel 2 – Robust Random Sampling of Custodians and Data Sources as well as Documents Produced in Ediscovery
Panel 3 – Purpose of Random Sampling is to Facilitate Parties Reaching “Meeting of the Minds” on the Scope of Ediscovery and Sufficiency of Ediscovery
Panel 4 — Development of “Sensitive-Information” Log to Safeguard Selected Documents of Concern to the Responding Party, Subject to an In Camera Examination by a Judge

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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 for those applying for CLE credit, a $100 administra-tive fee will be assessed.

CLE

CLE credit is being applied from the New Jersey state bar.

Conference Details

Agenda

Panelists

Materials

Registration