Ediscovery

I. 2015 Amendments to Discovery Proportionality Rule 26(b)

A copy of the Guidelines and Best Practices for Implementing the 2015 Discovery Amendments Concerning Proportionality (Second Edition) drafted under the aegis of the Center’s President when he served as the Director of the Duke Law Center for Judicial Studies is posted at Download Document. The Duke Bolch Discovery Guidelines and Best Practices explain the the purpose of the 2015 proportionality discovery amendments, guidelines on implementing them, and best practices supporting the spirit of the amendments.

II. Inside-Outside Marginal-Utility Analysis

The inside-outside marginal-utility analysis arose from discussions at the Ediscovery at a Crossroads conference held at GW on April 13-14, 2023. Judges have quietly turned to a common-sense approach focusing on what is truly important as a fair means to get the ediscovery that plaintiffs need in an efficient manner.

These courts start with a review of ediscovery produced from persons who have obviously relevant information and then move on to considering other persons with relevant information, 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 universe by applying the Rule 26(b)(1)proportionality factors, these judges work from the core information to the outside ring, focusing first on what 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. For a fuller discussion Click Here.

Ediscovery Legal Standards and Party Obligations Under the Federal Rules of Civil Procedure, Rabiej Litigation Law Center, View Details
Excerpts from Other Organizations Publications and Judges’ Orders Adapting the Marginal-Utility Test, Rabiej Litigation Law Center, View Details
Two Rule 26(b)(1) Proportionality Factors Evaluated Out of Context Prejudices Party, Rabiej Litigation Law Center, View Details
Research on Cases Addressing Marginal-Utility Test, Rabiej Litigation Law Center, View Details

III. Technology Assisted Review (TAR)

A copy of the Technology Assisted Review (TAR) Guidelines drafted under the aegis of the Center’s President when he served as the Director of the Duke Law Center for Judicial Studies is posted at Download Document The Duke Bolch TAR Guidelines include the following four chapters:

Defining TAR
Describing TAR Workflow
Alternative Tasks for Applying TAR
Factors to Consider When Deciding Whether to Use TAR

IV. Bold New Ediscovery Protocol

The Center had been working on a voluntary protocol, which would include the following provisions:

Mandate cooperation between the plaintiff and defense sides
Allow the requesting party in discovery to direct what information and how that information is to be searched
Set a cap on the amount of money expended by the producing party on discovery
Allow discovery beyond the cap only if the requesting party pays for it (cost-shifting)

After several months of discussions with team members and others, a joint decision was made to discontinue the project. The preliminary draft was thought to be useful and is retained in the event circumstances change. Download Document