Proportionality in Discovery by Judicial Mandate



by Constantine Pappas on July 15, 2014

Analytics & Assisted Review , Legal & Industry Education

Those of you who have taken our training courses, followed the blog closely or have heard us speak no doubt are familiar with our assertion that computer-assisted review is not just a helpful tool, but rather an increasingly necessary one as data volumes begin to escalate. We’re not alone in this regard. Judges are becoming increasingly like-minded, and are structuring their discovery rules in such a way that sometimes the only means of compliance is via technology.

For example, let’s consider Judge Paul W. Grimm, United States District Judge for the District of Maryland, and his discovery rules, along with Judge Lorna Schofield’s Individual Rules and Procedures for Civil Cases in the Southern District of New York. They each have similar rules which limit review to only 160 hours. This figure includes:

• Identification and collection
• Searching and analysis
• Review for responsiveness, privilege, and work product

This figure suggests four weeks of review for one person—employing the all too mythical 40-hour work week—or less as the team expands. Now compare these figures to some of the larger cases out there, where hundreds or even thousands of attorneys work weeks or months to push through a production.

Clearly the two approaches couldn’t be further apart. I think it’s safe to say a complete manual review would not even be feasible for many cases in 160 hours or less. While it’s true that the parties can show good cause in order to employ more resources, the message is clear: proportionality is the baseline.

To drive the point home, Judge Grimm sometimes issues his limits as an Order at the outset of a case. This makes it even more unlikely that parties will be able to let costs and review time escalate out of control. Technology seems to be the obvious solution here, regardless of whether the limits are true mandates or merely guidelines.

We are seeing similar approaches being applied across the Atlantic. Those who attended my webinar with Chris Dale earlier this year no doubt may recall his mention of disclosure policies in the United Kingdom. Chris stated that UK rules do not require parties to “look under every stone” for relevant documents.

In both countries, concerns about escalating cost and unnecessary delay seem to be very much on the minds of the judiciary. What’s more, these judges are suggesting technology as a solution. To learn more about how Assisted Review has drastically reduced costs for other Relativity users, please see our case studies.

For more information on how Assisted Review helps manage massive reviews during litigation, check out this blog post for details on proportionality, or this one for some transparency considerations.

If your team is facing limited review hours—or wants to prepare for a case with such limitations—contact us at advice@kcura.com. We’re happy to help you get your projects up and running with those considerations in mind, while helping you make the most of your review and understand your data more quickly.

 

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