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Proportionality: Mitigating Costly Over-Discovery

Author: Tim Steele
Proportionality - weighing case merit with cost of discovery for civil litigation.
Proportionality: a cost-benefit analysis applied in the context of Civil Litigation Rule 26(b)(1) whereby the needs of a case are weighted against the burden of producing relevant data (ESI).

The Purpose of Proportionality for Civil Litigators

The purpose of proportionality is to guard against costly over-discovery. In civil litigation, proportionality should ensure lawsuits are reasonable. So, civil litigation teams are responsible to gain insight into a case with speed. Two primary objectives guide all that litigators do:

  1. disclose evidence early and dispose the case
  2. resolve the case quickly, particularly when parties leverage discovery to drive up cost and force a settlement

External Forces Inhibiting Civil Litigators

Circumstances outside litigators’ control are hampering their ability to gain insight about a given case with speed. And now, the number of matters for many is increasing. Norton Rose Fulbright’s 2020 Litigation Trends Report confirms that COVID-19 drove more litigation:

  • 31% of corporations report an increase in disputes as a direct result of COVID-19
  • Nearly 70% of respondents report increasing workloads for their teams
  • Almost 50% report increased pressure to reduce legal spend

The pressure from an increased workload and limited resource will likely continue for months – or years. And, according to a Complex Discovery‘s recent survey, 49% of respondents said budget constraints are potentially the greatest impact on business in coming months.

Proportionality Necessitates Speed

Federal and state rules of civil procedure mandate proportionality to discourage the use of discovery to increase costs and force settlements in cases with little merit. Attorneys must weigh the importance of the information necessary for the case, the difficulty of producing that information, and whether the discovery burden outweighs its benefits. The procedure timelines dictate that those attorneys must reach their conclusions with speed {26(f) & 16(b)}:

  1. Hold “Meet and Confer” conference “as soon as practicable” (21 days or less)
  2. Initial disclosures and discovery plans filed fewer than 14 days after Rule 26(f) meeting
  3. Complete discovery within 90 to 120 days after the Rule 16(b) conference

In Perspective

The reality for litigators is ever-increasing pressure from forces outside their control:

  1. Increased disputes without the ability to scale resource
  2. Budget constraints or reductions
  3. Increasing, unmanaged, unstructured data surface in which relevant data must be found
  4. Must meet time commitments with the balance of case merit and cost containment

Enabling Litigators with Proportionality & Early Case Assessment

The existing EDRM model does not support early case assessment necessary to achieve proportionality. Lack of quick insight into relevant case data causes over-collection and wastes valuable resource. “Relevance” is late in the process.

Data “relevance” is realized late in the discovery process

The current model:

  • Often involves manual collection tools and/or personnel to collect data remotely
  • Does not tag data early in the review process, resulting in over-collection
  • Yields a high percentage of non-responsive data

Leveraging Proportionality Tools

Heureka’s indexing platform optimizes proportionality and improves EDRM performance by indicating “relevant” data early.

Data “relevance” is realized early in the discovery process

Heureka enables the improved model:

  • “Data Identification” is the 1st step
  • Insight for a defensible approach
  • Realize data relevance much quicker and reduce cost by at least 35% 
  • A negotiation strategy aligned with case merit
  • The elimination of duplicative data
  • Improved management of outside counsel

Heureka classifies and tags PII in full support of data governance initiatives. Please visit us at http://www.HeurekaSoftware.com or watch this video https://www.youtube.com/watch?v=_SyDehZLO08.