Good, Better, Best: a Tale of Three Proportionality Cases – Part One

http://ow.ly/apo0I

An article by Ralph Losey, Esq. posted on his blog e-Discovery Team®.

The article discusses 3 cases that pertain to proportionality issues, and examine objections to eDiscovery production requests.

The article states, "Three cases came out recently onproportionality, the key legal doctrine to discovery based on Federal Rules 26(b)(2)(C), 26(b)(2)(B)(iii), and 26(g)(1)(B). I-Med Pharma Inc. v. Biomatrix, 2011 WL 6140658 (D.N.J. Dec. 9, 2011) (GOOD); U.S. ex rel McBride v. Halliburton Co.,, 272 F.R.D. 235 (D.D.C. 2011) (BETTER); DCG Sys., Inc. v. Checkpoint Techs, LLC, 2011 WL 5244356 (N.D. Cal. Nov. 2, 2011) (BEST). Since all three cases embody proportionality, they are all good. But some are better looking than others.

The quality of the application of the doctrine in these cases is directly tied to the parties timing. In the best case the issue was raised fast, even before discovery. It was raised in the 26(f) conference and 16(b) hearing."  The "best case" the author points out to be the DCG Sys. matter.

The author looks at the I-Med Pharma case, and notes that the plaintiff was seeking relief from the defendant's request. The author questions why the plaintiff's counsel agreed to the keyword list provided the defendant in that matter, in the first place.  Mr. Losey states, "...when I say keyword search sucks, as I did in Secrets of Search: Part One, this is the kind of search I am referring to: the blind guessing,Go Fish, linear kind with no quality controls. I am certainly not referring to the kind of iterative keyword search on steroids that we see in Kleen Products, which appears to be almost as good as predictive coding based hybrid multimodal methods."

The article goes on to further discuss I-Med by saying, "Plaintiff’s counsel finally woke up and discovered proportionality (here is where we get to the better late than never part), when the forensic expert searched the unallocated space of their client’s computer system and found 64,382,929 hits covering the equivalent of 95 Million pages of documents! Based on the complete failure to limit the search to custodians, or date, and the Go Fish type list of keywords, this result, in Judge Debevoise’s own words, should come as no surprise."

The article then goes on to further examine proportionality, and the author discusses examples provided by himself, and U.S. Magistrate Judge Facciola, during a recent CLE, where Mr. Losey used artwork as an example to illustrate proportionality, and Judge Facciola used classical music to illustrate the same point.