There is good news on the new Amendments to the Federal Rules of Civil Procedure: Magistrate Judges are applying proportionality analysis like it is a shiny new toy.
Magistrate Judge Tom Baker in Indiana weighed in on expedited discovery in advance of a preliminary injunction hearing. Southeast Fin. Credit Union v. College Network (S.D.Ind. Mar. 15, 2016, No. 1:15-cv-01507-LJM-TAB) 2016 U.S. Dist. LEXIS 32788, at *8-10.
The Plaintiff Requesting Party sought in an interrogatory information about conversations between two parties regarding a specific transaction. The Requesting Party asked the Court to order the two parties to “to supplement their response by producing ‘emails using supplemental search terms, as agreed; official meetings/minutes of Global/Class board of directors, members, managers, etc.’” Southeast Fin. Credit Union, at *8.
The Producing Parties countered that many of the requested emails had been produced in response to a request for production. Southeast Fin. Credit Union, at *9.
The Producing Parties challenged supplementing the interrogatory on proportionality. Id. Both Producing Parties argued that the Plaintiff’s additional search terms resulted in “79% of all of the companies [sic] emails being returned as positive results for the at issue search terms.” Id.
Judge Baker stated that proportionality favored the Producing Parties. The Court recognized that the emails on the transaction were important to the issues in the case, but the parties were only engaged in limited expedited discovery before a preliminary injunction hearing. Id. Moreover, the parties did not state how the emails related to the amount in controversy. Id. Furthermore, the Producing Parties producing 79% of their emails “would no doubt consume significant resources.” Id. Finally, the Plaintiff did not explain how the emails were relevant to the preliminary injunction motion. Id.
The Court held that the Producing Parties did not need to supplemental their interrogatory responses based on proportionality. Credit Union, at *9-10.
Bow Tie Thoughts
Proportionality analysis under the new Amendments is still very young, even though we have a decade worth of cases under the 2006 Amendments. Requiring parties to state why information is relevant to the case and how it will resolve issues should be done as a matter of course. The concern with proportionality analysis is if it is based on little facts and conjecture.
For example, could the parties in this case have negotiated more over search terms to avoid reviewing 79% of an unknown amount of emails? This would require a requesting party to have a clear idea what they are seeking. Having a clear goal would be very helpful to develop search strings to negotiate with the producing parties. This could turn into guesswork for the requesting party, as it is difficult for a requesting party to know with certainty how to request unknown information. To put it bluntly, requesting parties are not in the position to know who are all the key players on the other side, specific dates communications were sent, and other possible terms of art. All of that information to make a request “proportional” could be beyond the knowledge of a requesting party.
Requesting ESI with search terms can often turn into a strange game of poker. The requesting party is not just trying to predict what’s in the hand of the producing party, but the remaining cards in the deck. To lesson this problem, I encourage attorneys to think in terms of concepts, not specific search terms. Who are the key individuals? How did they communicate with each other? When did they communicate? What language did they use to communicate on the issues in the case? Try to identify these issues at the meet and confer, so requests can be specific.
Time will tell how Courts continue to apply proportionality analysis. The big lesson so far is that Requesting Parties should say why the sought ESI is relevant and how it will resolve issues in the case. Producing Parties need to be able to explain the burden of producing the ESI, which could include volume and associated review costs, including collecting and attorney review time.