Two recent decisions highlight the usefulness of phased e-discovery as a tool to satisfy Rule 26(b)(1)’s ever-important proportionality requirement. It is worth noting that neither phased discovery nor proportionality are particularly new concepts to e-discovery. To the contrary, proportionality has been the “key phrase” of Rule 26(b)(1) since the rule’s 2015 amendment, and phased discovery has been around even longer. Moreover, phased discovery as a means to achieve proportionality is not that novel of an idea itself—indeed, one of Kilpatrick Townsend's own Senior Project Managers on the LitSmart® E-Discovery Team, Amy Catton, wrote an instructive article on the subject in 2018. Model orders for patent cases in numerous courts require phased discovery, typically phasing email discovery to occur after other discovery and only if deemed necessary. However, phased discovery is becoming prevalent in other types of cases as well. For example, recent decisions like Weidman v. Ford Motor Co., No. 18-12719, 2021 WL 2349400 (E.D. Mich. June 9, 2021) and Huntsman v. Southwest Airlines Co., No. 19-cv-00083-PJH, 2021 WL 3504154 (N.D. Cal. Aug. 10, 2021) have renewed the value of this approach.
What is Phased Discovery?
As a brief explanation, phased discovery limits the initial scope of discovery to the custodians and data most relevant to the issues in hopes of alleviating the potential burden and costs typically associated with complex discovery matters. Speaking directly to the goal of proportionality, supplementary phases will be added only if there is need for additional discovery. Due in large part to the seemingly endless increase in the volume and sources of ESI, proportionality has never been more important. Decisions like Weidman and Hunstman signify this, and also suggest a more robust use to come of the cost-effective and efficient e-discovery strategy in utilizing a phased approach.
Duty to Limit Discovery That Is Not Proportional
In Weidman, a product liability suit, the court denied plaintiff’s motion to compel the defendant to conduct a keyword search of three custodians. It reasoned that plaintiff had failed to establish how an additional search methodology was proportional to the needs of the case. Instead, the plaintiff focused on the relevancy of the discovery, while “gloss[ing] over the operative rules requiring an assessment of proportionality.” Weidman, 2021 WL 2349400, at *2. While not specifically addressing a phased approach to e-discovery, Weidman hits on important proportionality factors that emphasize the benefits of phased e-discovery.
Addressing proportionality as the “key phrase” of the current Rule 26(b)(1) and criticizing “efforts to look under every stone in an e-discovery world populated by many stones,” the court advocates for an “increased reliance on the common-sense concept of proportionality.” Id. at *3 (citation omitted). This, the opinion continues, “is now ‘the power—and duty—of the [courts] actively to manage discovery and to limit discovery that exceeds it proportional and proper bounds.’” Id. (citation omitted).
To this last point, not only does phased discovery benefit attorneys and their clients, but it also presents itself as an optimal means for the judiciary to “actively . . . manage discovery.” The court’s decision Huntsman goes on to directly endorse this approach.
Phasing Custodians to Achieve Proportionality
In Huntsman, a class action alleging violations of the Uniformed Services Employment and Reemployment Rights Act of 1994, the court agreed with the defendant’s argument that many of plaintiff’s requests for production were “overbroad and not proportional to the needs of the case.” Huntsman, 2021 WL 3504154, at *2. More importantly, “given the large number of responsive documents,” the court agreed with defendant’s proposed course of production to utilize a phased discovery approach. Id.
One method employed in the defendant’s phased approach was a “first phase review” of seven custodians whose ESI was “most likely to contain relevant and discoverable information.” Joint Discovery Dispute Letter Concerning Plaintiff’s RFP Nos. 9-14 at 5, Huntsman, No. 4:19-cv-00083-PJH (N.D. Cal. Filed July 26, 2021). The plaintiff argued that this initial phase was incomplete and suggested a list of thirteen potential custodians instead. However, the court agreed with the defendant on burden and proportionality grounds seeing as the first phase review still identified over 47,000 unique and responsive documents even with only seven custodians. Additionally, the defendant assured the court that should the first phase “reveal additional new custodians, potential search terms, or issues, [the defendant] will reasonably supplement its efforts.” Id.
Utilizing TAR to Achieve Proportionality
Huntsman also touches on the use of keyword searches and technology assisted review (TAR) to narrow the scope of review to only documents that are likely to be responsive. The utility of e-discovery tools such as these cannot be overstated. To be sure, the court makes it clear that the defendant’s “approach to using keyword searches and [TAR] in tandem does not offend the court’s expectation that the parties conduct a reasonable inquiry as required by the rules.” Huntsman, 2021 WL 3504154, at *3. If anything, these tools make conducting a “reasonable inquiry” possible.
Coupling phased e-discovery with tools like keyword searches and TAR yields an even more proportional approach. Its value only increases with the vast array of other e-discovery tools available. Technological advancements like AI-assisted TAR and improved culling software further the cost benefits and usefulness of a phased approach. If today’s trends continue, the volume of ESI will only grow larger and more complex, with no shortage in sight of new ways to generate it. As companies collect and store more and more data, rulings like Weidman and Huntsman forecast an increased reliance on e-discovery techniques as a prerequisite to achieving proportionality.
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