March 25, 2021

GW Discovery Proportionality Benefit-Burden Model Bench-Bar Conference

Deep Dive Into New Framework: Prioritizing Custodians Possessing Relevant Information



Mike Zogby, deputy leader of the national product liability & mass tort group and co-chair of the firm’s health and life sciences litigation team, is speaking at the Discovery Proportionality Benefit-Burden Model Bench-Bar Conference, hosted by the James Humphrey Complex Litigation Center of the George Washington School of Law, which is being attended by over 50 federal judges from throughout the United States and over 100 plaintiff and defense attorneys and academics. Mike is featured on the “Deep Dive into New Framework: Prioritizing Custodians Possessing Relevant Information” panel — which also includes Prof. Rick Marcus of Hastings Law School; Hon. Iain Johnston of the U.S. District Court for the Northern District of Illinois; Hon. Gary Jones, U.S. Magistrate Judge for the Northern District of Florida; and attorneys discussing eDiscovery, and plaintiff and defense counsel perspectives. They examine a work-in-progress discovery proportionality benefit-burden model, developed under the center’s auspices by teams of lawyers and judges.

The model’s structured methodology creates a new analytical framework, which is designed to enhance a party’s proportionality assessments, facilitate discovery negotiations with the opposing party and better inform judicial resolution of discovery disputes. The model is a process that classifies custodians and their respective data sources into four broad categories by priority and discovery burden. Custodians with highest priority at lowest discovery burden are quickly identified. Under the model, a table of projected discovery costs for every custodian and every data source is developed to refine proportionality assessments. The model’s assessments can be adjusted periodically to account for evolving and new information learned through interactions and negotiations with an opposing party.

The conference also featured a panel discussing statistical findings demonstrating that discovery that achieves lower recall rates than are now typically required will uncover all topics identified as being relevant in 90%-plus of cases. Following the conference, the center will continue to refine the model and publish it for comment. The center will also consider developing best practices promoting the use of the model as a standard proportionality-analysis framework for the bench and bar.

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