The battle over e-discovery cost control can be won or lost during negotiations with opposing parties. Although many courts are receptive to proportionality arguments, litigants don’t always do the best job of providing courts with the data and analysis to support their arguments, relying instead on generalized and unsupported claims of burden and expense.
This article proposes one approach to preparing for e-discovery negotiations and arguments based on the Proportionality Triangle™ and its associated Proportionality Worksheet and describes how those tools can be used in negotiation training exercises.
Rule 1 of the Federal Rules of Civil Procedure provides the oft-cited goal of the civil justice system – to provide the “just, speedy and inexpensive determination of every action.” The criteria of just, speedy and inexpensive align well with the constraints of the project management triangle – scope, time and cost.
Project management professionals know that changing one project constraint invariably causes changes in others, e.g., time can be shortened, but the project will typically either cost more and/or the scope will have to be narrowed. Similarly, in civil litigation, speedier results could be achieved if society could tolerate more incorrect or unjust results, or cases could be prepared more thoroughly if there were no budgetary constraints. The question is, “How much discovery is enough?”
By merging the constraints of the project management triangle and the criteria of Rule 1, the Proportionality Triangle provides a framework to use in analyzing the impacts of different ESI requests or negotiating positions (see Figure 1). The scope of e-discovery is based on what content will be collected and what method will be used to produce it. The time constraint involves not just the time required for individual tasks but also the required sequence that may result from task dependencies. The cost of producing ESI is measured not only in direct monetary terms but also in terms of scarce corporate resources that might be tied up or consumed, e.g., the lost productivity of key executives, scientists or engineers, or the use of scarce computing resources.
The theoretical construct of the Proportionality Triangle is put into practical application by the Proportionality Worksheet (see Figure 2). The major elements of scope, time and cost are incorporated into the Worksheet to permit attorneys to assess the impacts of different assumptions and negotiating positions, e.g., what happens if the number of custodians goes from 20 to 50, or if the number of gigabytes per custodian per file server is 40 percent more than expected? What are the risks of not disclosing the use of predictive coding?
While the Worksheet incorporates industry averages or rules of thumb, companies ought to accumulate metrics from their own experience and modify the worksheet for more accurate modeling in future cases.
For the last five to ten years, e-discovery has been a major focus of cost containment efforts, but there are other major litigation cost factors beyond ESI, and proportionality arguments ought to look at the whole cost picture, not just e-discovery. Accordingly, the Worksheet includes tabs where counsel can estimate other major cost drivers such as number of depositions expected, number of days of trial and number of days the case is expected to remain open.
With the Proportionality Worksheet, proportionality arguments can be made at the macro or overall case level, or at the micro level of specific requests. In either instance, the question remains the same – is the value of the information requested worth the costs or other measures of burden? At the macro level, the Worksheet tracks the “value” of the case from both plaintiff and defense perspectives. While they will invariably be wildly divergent, they ought to be stated explicitly as a frame of reference or set of benchmarks to use when evaluating overall costs.
In law school, moot court students are given the opportunity to practice putting their knowledge to use without live clients being put at risk. One very effective way to develop and sharpen e-discovery negotiation skills is to have mock negotiations using representative but hypothetical case scenarios. For example, we’ve developed moot court-like role-playing exercises in which different teams “represent” opposing parties in hypothetical discovery disputes and then negotiate with each other. Teams use the Proportionality Worksheet to estimate the costs and timelines of different proposals and are given cards to play that represent different strategies or goals. Part way through the exercise they are given “surprise” cards – e.g., the discovery of previously unknown ESI – to incorporate in their negotiations.
Regardless of whose negotiation model corporations use, they ought to consider some form of role-playing negotiation training. The competitive, hands-on approach makes it a far more engaging and enjoyable exercise for most lawyers than lecture-style training.
For your royalty-free version of the Proportionality Worksheet, the card deck, hypothetical case materials and a reprint of a longer article on the Proportionality Triangle that appeared in the ABA’s Electronic Discovery and Digital Evidence Journal, Winter 2012, please contact the author.
Jeff Johnson is Principal Consultant with Quantum E-Discovery in Kansas City, specializing in eDiscovery collection, analysis and review. Mr. Johnson is a Certified Computer Examiner (“CCE”) as awarded by the International Society of Forensic Computer Examiners.