We recently addressed a few transparency issues currently under discussion and deliberation in the computer-assisted review community. Proportionality is often mentioned the in same conversations as these issues.
Simply put, proportionality asks and answers the question of how much money should be spent on a given task. It is an issue that reaches far and wide across the legal industry, touching not only on e-discovery, but also information governance and other subjects.
It’s well known that computer-assisted review can help save case teams’ time and money by reducing the number of documents that require manual review. With that in mind, discussions around computer-assisted can often invoke proportionality as a shield or brandish it as a sword.
Let’s first broach proportionality as a shield—its more common role. Suppose your team has been working on a computer-assisted review project for the last four weeks, and the latest round of reports indicate an overturn rate of 12%. This could be considered a respectable number for some cases, and many teams might choose to end the project at this point and move on to the next steps. In this case, however, when the project was initially scoped out, your team chose an overturn rate of 8% as the stabilization goal. Now you must decide how to proceed. Proportionality is a key component in how that decision is made.
What if you knew that, if the project continues another two rounds, the 8% overturn stabilization goal would likely be attainable? Conducting another two rounds would cost your team money, but would it be worth it? Would it compromise the cost savings of using computer-assisted review in the first place? Would the client be willing to spend it? Would the additional rounds impact the team’s comfort level in terms of defensibility?
The answers to these questions will inform the final decision, and they will help your team provide a protective rationale behind your workflow decisions. The transparency component we mentioned earlier comes into play when it must be decided how many of these answers must be shared or discussed with the other side. After all, opposing counsel has their own proportionality arguments to make. Enter the sword.
The opposing side could flip the perspective on proportionality, suggesting too much focus on cost savings may jeopardize the results of the review. They might argue that the case “is too important to be short-changed,” and that “no stone must be left unturned.” And so the sword clashes with the shield until some middle ground is reached.
These arguments aren’t new to the industry—they existed well before computer-assisted review. However, the emergence of this technology has brought them to the surface.
It’s important to remember that budget considerations were always part of the decision-making process. They affect how many reviewers are used, how many documents will be QCed, how many people to interview, and how many custodians to include. In the same way, you can keep proportionality in mind when you consider using computer-assisted review, and how to best go about the process.
As always, feel free to contact us if you have any questions about best practices for your Assisted Review projects, or if you have any questions about the workflow.
