On April 4, 2013, John Rabiej, director of Duke Law’s Center for Judicial Studies, led a panel discussion of lawyers and experts on technology-assisted ediscovery review (predictive coding) at the meeting of the Judicial Conference Advisory Committee on Civil Rules at the University of Oklahoma. In addition to Rabiej, the panel included Professor Gordon Cormack (University of Waterloo); Maura Grossman (Wachtell, Lipton); John Rosenthal (Winston & Strawn); and Ian Wilson (Servient). The panel’s presentation was a preview of the Technology-Assisted Review (TAR) Conference that the Judicial Studies Center is holding in Washington, D.C., on Friday, April 19.
The Civil Rules Committee is considering amending the scope of discovery in Rule 26(b)(1) to expressly incorporate the proportionality test, now buried in Rule 26(b)(2)(C)(iii). Under the proportionality or “cost-benefit” test, a court must limit the extent of discovery if the “burden or expense of the proposed discovery outweighs its likely benefits.” The proposed amendments also would eliminate the provision providing discovery of any matter relevant to the “subject matter” on a good cause showing.
A recent RAND study concluded that the TAR option was the only reasonable way to handle large-scale ediscovery production, explained Rabiej. It projected that “many millions of dollars in litigation expenditures will be wasted each year until legal tradition catches up with modern technology.” It found that the biggest barrier to increased TAR use was the “absence of judicial guidance on the matter.”
Rabiej urged the Committee to consider adding a reference in the Committee Note to Rule 26(b)(1) promoting the use of TAR, which holds great promise for reducing ediscovery costs. He noted that the Committee should not endorse any particular technology because such technology would be outdated by the time a rule is enacted (at least three years later). Nor should the Committee mandate that the technology be used in every case (90 percent of cases filed in federal court have little or no discovery problems; but the 10 percent of cases creates enormous problems). Rabiej nonetheless recommended that the note should be drafted to alleviate concerns of many lawyers about using the new technology.
The proportionality test, which is being considered for adoption in Rule 26(b)(1), provides an excellent opportunity, said Rabiej, for the Committee to promote TAR in the Committee Note as an effective means of reducing cost while retaining an accuracy level at least as good as manual review. If approved by the Committee on Rules of Practice and Procedure, the proposed Rule 26 amendments will be published for public comment on August 15 for a six-month period.
Both the Civil Rules Committee chair and reporter are on panels for the Judicial Studies Center’s TAR Conference in Washington D.C., an upcoming program in The Duke Conference: Bench-Bar-Academy Distinguished Lawyers’ Series.