Negotiating the Scope of E-Discovery: Proportionality and Pre-Trial Preparation in Complex Litigation

Litigation partner Jeff Jacobson participated in a webinar for Association of Certified E-Discovery Specialists (ACEDS) titled, “Negotiating the Scope of E-Discovery: Proportionality and Pre-Trial Preparation in Complex Litigation.”

Proportionality in e-discovery is based on the objective of Rule 1 of the Federal Rules of Civil Procedure, which is to ensure a “just, speedy, and inexpensive” resolution of cases. It is designed to prevent unnecessarily burdensome and costly discovery requests.

To persuade a judge that a particular discovery request is expensive, inefficient, or unnecessary, legal teams must understand and quantify the cost and effort required and propose viable alternatives to demonstrate their genuine commitment to a full and fair discovery process. “When you go into this, you’ve got to have your facts lined up, you need to know why something is so expensive, and have explored ways to make it cheaper; I very rarely run across judges that won’t listen to you when you can do all of those things,” said Jacobson.

By implementing strategic approaches to information governance, sampling, documentation, and clear communication, litigation teams can establish a reasonable scope for e-discovery and ensure their efforts are effective and sustainable. “If you have the desire to roll up your sleeves and figure out why things work the way they do, you can save your clients money and be hugely successful, not just in client service, but also in explaining issues to judges in ways that will help your clients win the case,” encouraged Jacobson.

The webinar was summarized in an article on ACEDS.