<b><i>Legal Tech: e-Discovery</b></i><br> <b><i>Solo v. United Parcel Services</b></i>: A Conversation About Proportionality

The defendant countered, stating that the request was unduly burdensome, with much of the information archived on tapes that would be very difficult to retrieve and process, costing it about $120,000 in e-discovery spend. The defendant also argued, in response, that the discovery should be limited to a six-month period, substantially reducing the burden, and supported that position with a sampling methodology.

The court agreed with the defendants, ruling that complying with the plaintiffs' request would be overly burdensome. The defendant used metrics (i.e., cost to access data stored on backup drives) to justify their proportionality claim that the plaintiffs' request was “extraordinarily burdensome.”

I asked Judge Craig Shaffer, United States Magistrate Judge for the District of Colorado and a member of the advisory board for the Sedona Conference, for his take on this case. He responded: “Given the current posture of the case, I think the court really was attempting to wrestle with, if you will, staging. How can we stage discovery so the case moves forward, we don't get bogged down, plaintiffs get access to information that's truly relevant to the plaintiff's case, and I think the court was persuaded that sampling was a way to strike an appropriate balance. What was also nice, I think, was that the court invited the parties to work together consistent with Rule 1 to see if they could reach a resolution on sampling. I think it's a very creative approach, I think the court should be applauded.”

Making a Proportionality Argument Persuasive

I then asked Ralph Losey, National E-Discovery Council for Jackson Lewis PC, how often he sees parties making these justified, metric driven proportionality arguments, and what is needed to make such an argument persuasive?

Ralph stated that there is good improvement on this: “Certainly, it's something that I harp on all the time with my lawyers, that you never just say, 'Too burdensome.' You have to spell out why it's too burdensome. You have to know about the data. This is really nothing new to e-discovery. I mean it's basic stuff.”

“In the old paper days,” he expanded, “you would look at the files. If there was a warehouse full of documents you would at least look at the boxes, you'd find the key ones, you'd look through them. We used to call that getting your hands dirty, actually looking at the facts, spending the time to review documents. Now, I call it putting your hands in the digital mud. Don't just get a request in and say, 'Oh, that's way too burdensome.' Look at it, and here is where a vendor who has the software and the technology experts will help you. Without good software and these advanced review technologies, it just can't be done. Go the extra mile, talk to the client IT department. Come up with a number so that the judges aren't just left guessing. You may know it's burdensome, but you've got to quantify it. You've got to put numbers on it and that requires looking at the documents, really understanding the client IT system, and understanding the total data there. There's just no substitute for that.”

Cooperation and Legal Technology with Proportionality

As a follow up, I asked Eric Mandel, President of the Legal Technology Professionals Institute (LTPI), about how cooperation and technology play a role in proportionality. He replied: “In terms of cooperation, you're supposed to try to work this out on your own. I would prefer that everyone take cooperation seriously. It should not have to have come in front of the judge, in order for the judge to tell them what they should have known in the first place, which is, 'try sampling.' If either side had bothered to have an e-discovery expert, subject matter expert, either as an attorney or otherwise available to them to say, 'Hey, there are other ways to do this that are smart and reasonable and we can move forward,' they could have spent a few thousand dollars on that instead of $50,000 or $60,000 on motion practice to get to this same point. So, the cooperation is important, and the confidence to be able to do this, or have the right people around you to do this is important too.”

Educating Judges

Finally, I asked Judge Shaffer if it is reasonable for legal teams to expect courts, like the judge in Solo, to come up with these types of remedies for parties? Or should legal teams need to be proactive in educating the judge?

“You've got to be prepared to go into court and educate the judge,” he said. “Not in an adversarial way, but from an educational way, saying, 'Judge, let me educate you about my data sets and let me explain to you why what I'm proposing makes perfect sense,' and you're going to get a lot further down the road.”

Key Takeaways

If you want to know how to do something, it's best to listen to the experts. Let me leave you with some key takeaways around how to make an effective proportionality argument, which came up in this case.

Metrics are key for defending your proportionality argument. The amended Rule 26 requires it. You can't simply say “Overly Broad and Burdensome” anymore. You have to be specific about why it's overly broad and burdensome, and back it up with metrics.

Educate the Judge on your case and offer alternative remedies in the spirit of cooperation in order to help find a middle ground. As Judge Joy Conti, U.S. Chief District Judge; Western District of Pennsylvania, said in a recent webcast I moderated: “You need to know the details about what makes it relevant, where your strong arguments are and where your weak arguments are. Then you can better show the court if you're proportional.”

Gain expertise on technology, either in-house or through a third-party vendor. As Eric Mandel says: “One struggle is knowing what it means to be competent, especially with how quickly our profession is growing. One of the biggest problems arises when people who are struggling aren't willing to admit it. So they push forward and make mistakes that can be avoided.”

*****
Mike Hamilton is the Director of E-Discovery Programs at Exterro.

Staying up-to-date on case law continues to be the best way to know how to effectively leverage your e-discovery process, as well as see how the courts are defining the now-year-old FRCP amendments that took effect in December 2015. Recently, I spoke with three leading industry thought-leaders to recap some of the latest case-law and to get their takeaways. One case that we focused on was Solo v. United Parcel Services, No. 14-12719 (E.D. Mich., Jan. 10, 2017), and the conversation centered around Rule 26 and proportionality.

Solo v. United Parcel Services

In this class action suit, the plaintiffs requested the defendants provide information pertaining to the number of packages that were overcharged. Plaintiffs alleged that the defendant, UPS, had breached its contract with shippers by overcharging for shipments that had a declared value of more than $300. During the pretrial process, plaintiffs filed a motion to compel, requesting specific information covering a three-year period.

The defendant countered, stating that the request was unduly burdensome, with much of the information archived on tapes that would be very difficult to retrieve and process, costing it about $120,000 in e-discovery spend. The defendant also argued, in response, that the discovery should be limited to a six-month period, substantially reducing the burden, and supported that position with a sampling methodology.

The court agreed with the defendants, ruling that complying with the plaintiffs' request would be overly burdensome. The defendant used metrics (i.e., cost to access data stored on backup drives) to justify their proportionality claim that the plaintiffs' request was “extraordinarily burdensome.”

I asked Judge Craig Shaffer, United States Magistrate Judge for the District of Colorado and a member of the advisory board for the Sedona Conference, for his take on this case. He responded: “Given the current posture of the case, I think the court really was attempting to wrestle with, if you will, staging. How can we stage discovery so the case moves forward, we don't get bogged down, plaintiffs get access to information that's truly relevant to the plaintiff's case, and I think the court was persuaded that sampling was a way to strike an appropriate balance. What was also nice, I think, was that the court invited the parties to work together consistent with Rule 1 to see if they could reach a resolution on sampling. I think it's a very creative approach, I think the court should be applauded.”

Making a Proportionality Argument Persuasive

I then asked Ralph Losey, National E-Discovery Council for Jackson Lewis PC, how often he sees parties making these justified, metric driven proportionality arguments, and what is needed to make such an argument persuasive?

Ralph stated that there is good improvement on this: “Certainly, it's something that I harp on all the time with my lawyers, that you never just say, 'Too burdensome.' You have to spell out why it's too burdensome. You have to know about the data. This is really nothing new to e-discovery. I mean it's basic stuff.”

“In the old paper days,” he expanded, “you would look at the files. If there was a warehouse full of documents you would at least look at the boxes, you'd find the key ones, you'd look through them. We used to call that getting your hands dirty, actually looking at the facts, spending the time to review documents. Now, I call it putting your hands in the digital mud. Don't just get a request in and say, 'Oh, that's way too burdensome.' Look at it, and here is where a vendor who has the software and the technology experts will help you. Without good software and these advanced review technologies, it just can't be done. Go the extra mile, talk to the client IT department. Come up with a number so that the judges aren't just left guessing. You may know it's burdensome, but you've got to quantify it. You've got to put numbers on it and that requires looking at the documents, really understanding the client IT system, and understanding the total data there. There's just no substitute for that.”

Cooperation and Legal Technology with Proportionality

As a follow up, I asked Eric Mandel, President of the Legal Technology Professionals Institute (LTPI), about how cooperation and technology play a role in proportionality. He replied: “In terms of cooperation, you're supposed to try to work this out on your own. I would prefer that everyone take cooperation seriously. It should not have to have come in front of the judge, in order for the judge to tell them what they should have known in the first place, which is, 'try sampling.' If either side had bothered to have an e-discovery expert, subject matter expert, either as an attorney or otherwise available to them to say, 'Hey, there are other ways to do this that are smart and reasonable and we can move forward,' they could have spent a few thousand dollars on that instead of $50,000 or $60,000 on motion practice to get to this same point. So, the cooperation is important, and the confidence to be able to do this, or have the right people around you to do this is important too.”

Educating Judges

Finally, I asked Judge Shaffer if it is reasonable for legal teams to expect courts, like the judge in Solo, to come up with these types of remedies for parties? Or should legal teams need to be proactive in educating the judge?

“You've got to be prepared to go into court and educate the judge,” he said. “Not in an adversarial way, but from an educational way, saying, 'Judge, let me educate you about my data sets and let me explain to you why what I'm proposing makes perfect sense,' and you're going to get a lot further down the road.”

Key Takeaways

If you want to know how to do something, it's best to listen to the experts. Let me leave you with some key takeaways around how to make an effective proportionality argument, which came up in this case.

Metrics are key for defending your proportionality argument. The amended Rule 26 requires it. You can't simply say “Overly Broad and Burdensome” anymore. You have to be specific about why it's overly broad and burdensome, and back it up with metrics.

Educate the Judge on your case and offer alternative remedies in the spirit of cooperation in order to help find a middle ground. As Judge Joy Conti, U.S. Chief District Judge; Western District of Pennsylvania, said in a recent webcast I moderated: “You need to know the details about what makes it relevant, where your strong arguments are and where your weak arguments are. Then you can better show the court if you're proportional.”

Gain expertise on technology, either in-house or through a third-party vendor. As Eric Mandel says: “One struggle is knowing what it means to be competent, especially with how quickly our profession is growing. One of the biggest problems arises when people who are struggling aren't willing to admit it. So they push forward and make mistakes that can be avoided.”

*****
Mike Hamilton is the Director of E-Discovery Programs at Exterro.