My military background gave me a true appreciation for technology as a force multiplier. If my wingman and I use our two modern aircraft with superior targeting technology to demobilize ten enemy aircraft at once, we have provided the same impact as ten less capable aircraft — two modern aircraft become ten. Great litigation technology can also be a true force multiplier that allows legal teams to be more cost-effective and efficiently manage large amounts of potentially relevant data over the course of any given case.
Recently, I had the privilege of sitting on a panel sponsored by the Chicago Bar Association to discuss the recent amendments to the Federal Rules of Civil Procedure, along with U.S. District Judge Robert Dow, Katrina Carroll, and Johanna Spellman, with Kate Lally as the moderator. The makeup of the panel was designed to provide a judicial perspective, plaintiff and defense perspective, and a vendor’s perspective.
In discussing proportionality, the panel focused on the factors to be considered in Rule 26(b)(1), such as the importance of the issues at stake, amount in controversy, and the importance of the discovery in resolving the issues. Judge Dow and the other two attorneys traded views and insights on instances when proportionality and sharing of cost and burden should or should not take place, such as number of depositions by either side, amount of requests for production, and so on.
There is a different view of the proportionality analysis, though; a litigant’s choice of technology can and should be examined to determine whether the requested discovery is proportional. Chief Justice Roberts stated in his Year-End Report on the Judiciary last December that the FRCP amendments were designed to:
- Encourage cooperation among parties
- Focus the discovery process on what is truly necessary to resolve the case
- Engage the judiciary in early and active case management
- Address serious new problems arising out of massive amounts of ESI
Most litigators likely understand the impact of ESI in litigation and in our everyday lives, yet only vaguely grasp the extent of the so-called “data explosion”:
- New data is generated constantly all around us — not just by our computers and mobile devices, but from cars, traffic lights, MRI scanners, smart watches, refrigerators, and so on -- the so-called “internet of things"
- Experts estimate that electronic data is now growing by 40% a year
- Experts estimate that more data was created in the last two years than in the entire history of the human race
- In just four years, the data growth rate is expected to reach almost 2 MB of data per second for each human being on earth
- In just four years, the estimated data size worldwide is expected to reach 44 zettabytes (44 trillion GB)
Ostensibly, businesses generate and keep data for operational purposes, and while it is tempting to attempt to limit the amount of data a requesting party can have in litigation, that strikes me as the tail wagging the dog. Instead, litigants should leverage the available new technology to help them collect, organize, sort, search, cull, and produce the data.
Technology can materially affect the balance of power in litigation, and all parties and the bench need to understand that impact that powerful modern technology can have. Just look at a few of the proportionality factors:
- The parties resources compared to the cost of review and production
- The parties relative access to relevant information
- The burden and expense compared to the cost of review and production
Consider this scenario. Two large commercial entities in a dispute — Party A v. Party B — both have collected about 5 million documents that they must now assess, cull, review, and produce.
Party A uses lawyers to interview key custodians, collect all relevant paper files from those custodians (including printouts of any relevant emails and other ESI), review the paper in hard copy format, and make copies of the production for the other side (I know, it may sound crazy, but that is how it was done 20 years ago and is still done in parts of the country today).
Party B also uses lawyers to interview the custodians, then remotely collects the key custodians’ server data (obviously, the sources of the remote collection depend on the party’s data map, but just work with me here). Party B then loads all collected data into a modern ediscovery platform and uses the included ECA tools to reduce the data set. Party B then uses 2–3 lawyers to tag a few hundred documents, and leverages continuous active learning predictive technology to sort the entire data set by responsiveness, key issues, privilege, and any other issue tag they choose.
I think most of you would agree that B is likely to collect far more data than A, yet A is probably going to spend far more money on discovery than B. Why? Because A is using a straight linear manual review, while B is using the power of modern database technology with predictive analytics based on state of the art artificial intelligence.
Now, consider the proportionality angle in the A v. B scenario: What if A complains that the discovery is not proportional to the amount in controversy or the parties’ comparative resources, because it is too expensive? Should A's choice to use no technology at all be called into question? I would say yes, absolutely. Should B be compelled to pay some “proportional” share of A’s discovery costs, simply because A failed to use technology? I would say no.
What if instead, A uses an older database technology, written in older computer language such as visual basic? Now, A might say to the judge, “we used technology, but the discovery requested by B is not proportional.” If I were B, I would argue that the judge should understand the quality of the technology used, and if A’s technology is slow, expensive, and impedes the productivity of A’s legal team compared to B’s database platform, is that B’s fault? Should B be punished for using better technology? Alternatively, should Party A be rewarded for using outdated software and techniques?
Party B may have a leaner legal team and incur lower litigation costs, but it has leveraged modern technology to be a force multiplier. Its cost of production is therefore lower, its level of resources are improved, and it has taken steps to control costs in terms of attorney time.
Bottom line: No proportionality analysis should omit an evaluation of the technology used by each party in the discovery process. To ignore the impact of modern technology would punish parties who use it, reward parties that don’t use it, and thus would chill the advance of litigation technology.
I think it is incumbent upon the parties and the bench to understand what is the effect of using older technology and how it can drastically affect cost.