Practical Proportionality Through Science

The change to Rule 26(b) in the Federal Rules of Civil Procedure emphasizes proportionality in discovery by elevating existing language to a more prominent place in the Rules. The intent is to encourage parties and the courts to reduce the time and costs of addressing the volumes of electronically stored information that may be implicated in discovery, while still uncovering the information that actually matters to the case.

The ideal scenario would be for counsel to engage in a practical discovery effort, equipped with facts about the volume and quality of information relevant to a claim or defense, where it resides, and potential methods to get it.

Such knowledge would enable a principled and defensible assessment of proportional discovery, whether or not the basis of the assessment is disclosed to the other side. But, if there were to be disclosure to, or a challenge by, the other side, facts about the approach would have to be persuasive. Success will depend on being able to demonstrate that a position has sufficient factual basis.

The critical question then becomes: How can counsel, without full discovery, unearth that factual basis?

Here, counsel can benefit from “practical proportionality through science.” In this case, the science of statistics, supported when circumstances warrant by the science of information retrieval (IR), offers both a practical and cost-effective approach to the proportionality dilemma, and one that would not impose undue burden in a very large range of matters.