Playing games is a great way to learn. That’s one reason I’ve devised a game concerning the interesting and fairly complex issues involved in trying to determine what e-discovery activities are proportional and appropriate in various sized cases. Specifically, what should you do to prepare for federal court 26(f) conferences in small and medium sized cases, versus large, complicated cases? Small, Medium or Large? is kind of a Goldilocks game of proportionality.
I have had to give these proportionality questions a lot of thought as part of my practice as a lawyer supervising hundreds of e-discovery projects at a time, projects of all different sizes. I could simply give you my answer, but after five books, I’ve already been there and done that. So I thought I’d try something new and make this learning into a game where you consider and vote on what activities you think are appropriate for a Small, Medium or Large case.
The format of this proportionality game is loosely based on the ideas of Hive Mind, a pretty cool new insight into collective intelligence, which, as Wikipedia puts it, is a “shared or group intelligence that emerges from the collaboration, collective efforts, and competition of many individuals and appears in consensus decision making.” See: Is Collective Intelligence a safer form of A.I?
The Hive Mind is different from Crowdsourcing, but related. To do properly, a Hive Mind requires Swarming, which we cannot really do properly in this game using polls. , Super-Intelligence and the virtues of a “Hive Mind” (Singularity, 2/10/16). One Silicon Valley startup Unanimous A.I., is developing technologies that enable sophisticated online human swarming and thus better collective intelligence. I might try their free product for social research, UNO, if I further investigate the power of the Hive Mind. Maybe at NY LegalTech? (Email me if you’re interested.) In the meantime we are going to use simple polling for the e-Discovery Hive Mind Game: Small, Medium or Large?
Let’s play the game and see what collective intelligence emerges from many individuals giving their opinion about proportionality and e-discovery. I am playing this game now with all of the litigation associates and paralegals in my law firm, which is a pretty large swarm by itself. Your responses will join in the swarm, the collective intelligence.
In January I’ll share the results of all the polling and opine away as to how well the Hive Mind performed. You can win the game in one of two ways, either by matching the most popular Hive Mind responses or by matching my responses. (I assume there will be a difference because not enough experts will be playing, but who knows, maybe not. In theory, with enough experts swarming, the group, the Hive Mind, will always have the best answer.)
Background To Play the Game
In order to play the Small, Medium or Large? game, you first need to be familiar with the checklist of the Southern District Court of Florida of all of the things that you should do to prepare for e-discovery in a large case. It is a pretty good list and I have written about it before. Good New 33-Point e-Discovery Checklist From Miami (e-Discovery Team, October 1, 2017) (a must read to fully prepare for this game). My article contains comments and explanations about all checklist items, which is the beginning of a kind of swarm interaction, that is, if you take time to ponder the signals. The Court’s checklist incorporates the new provisions in the rules on relevance and proportionality (Rule 26(b)(1)) and on specific objections (Rule 34(b)(2)).
It is not a perfect list, but it is the best one now out there with a court pedigree. It is not too long and complex, like the older lists of some courts that are very detailed, and not too short, like the easy-peasy list that Bill Hamilton and I created for the Middle District Court of Florida many years ago. (Attorneys still complained about how burdensome it was!) In sum, the 33-Point Checklist out of Miami is a good list for legal practitioners all over the country to use to prepare for e-discovery, which means it is a good basis for our Small, Medium or Large? Hive Mind Game. Come play along.
Rules of the Game
The goal of our Hive Mind Game is to determine which of the thirty-three points on the checklist are applicable to big cases only, which are applicable to medium size cases and which to small cases. You are to assume that all thirty-three points apply to large cases, but that they are not all applicable to medium and small size cases. The Hive Mind voting is used to allow the swarm – that’s you – to identify which of the thirty-three only apply to small cases, and which only apply to medium size cases. If a checklist item applies to a medium size case, it automatically also applies to a small size case.
In other words, the game is to sort the thirty-three into three piles, Small, Medium or Large? Simple, eh? Well, maybe not. This is a matter of opinion and things are pretty vague. For instance, I’m not going to define the difference between large, small and medium size case. That is part of the Hive Mind.
The game is important because proportionality in the law is important. You do not prepare for a big case the same way you prepare for a small case. You just don’t. You could, but it would be a waste of your clients money to do so. So the real trick in e-discovery, like in all other aspects of the litigation, is to determine what you should do in any size case to prepare, including even the small cases. For instance, outside of e-discovery, most people would agree that you should take the parties depositions as a minimum to prepare for a trial of any size case, including small ones.
What are the equivalent items in the 33-point checklist? Which of them should be applied to all cases, even the small ones? Which of them are too complicated and expensive to apply in a small case, but not a medium sized case? Which too complicated and expensive to apply in a small or medium sized case, but not a large one? That is where the real skill and knowledge come in. That is the essence of the game.
Assume All 33 Items Apply to Big Cases
This Small, Medium or Large? Hive Game requires you to assume that all thirty-three items on the Court’s checklist apply to big cases, but not to all cases, that there are certain checklist items that only apply to medium size cases, and others, a smaller list, that only apply to small cases. You may question the reality of this assumption. After all, the Court does not say that. It does not say, here’s a checklist we made to guide your e-discovery, but you can ignore many of the items on this list if you have a small case, or even a medium size case. Still, that’s what they mean, but they do not go on to say what’s what. They know that the Bar will figure it out themselves in due time, meaning the next several years. And right they are. But why wait? Let’s figure it out ourselves now with this Small, Medium or Large? Hive Game, and condense years to weeks.
The Hive Game will allow us to fill in the blanks of what the Court did not say. But first, lets focus again on what the Court did say. It said that the checklist may be used by members of the Bar to guide the Rule 26(f) e-discovery conferences and Case Management Reports. It did not say shall be used. It is a suggestion, not a requirement. Still, as every long-term member of the court knows, what they mean is that you damn well should follow the checklist in a big case! Woe unto the lawyers who come before the judges in a big case with an e-discovery issue where they never even bothered to go through the checklist. If your issue is on that list, and chances are it will be, then dear slacker, prepare for a Miami style bench-slap. Ouch! It is going to hurt. Not only you and your reputation, but also your client.
I feel confident in making the game assumption that all thirty-three checklist items apply to big cases. I am also confident they do not all apply to medium and small size cases and that is the real reason for the court’s use of may instead of shall.
With that background we are almost ready to start playing the game and opine away as to which of the 33 are small and medium size only. But, there is still one more thing I have found very helpful when you try to really dig into the checklist and play the game, you need to have the numbers 1-33 added to the list. The one mistake the Court made on this list was in using headings and bullet points instead of numbers. I fix that in the list that follows, so that you can, if nothing else, more easily play the game.
- The ranges of creation or receipt dates for any ESI to be preserved.
- The description of ESI from sources that are not reasonably accessible because of undue burden or cost and that will not be reviewed for responsiveness or produced, but that will be preserved in accordance with Federal Rule of Civil Procedure 26(b)(2)(B).
- The description of ESI from sources that: (a) the party believes could contain relevant information; but (b) has determined, under the proportionality factors, is not discoverable and should not be preserved.
- Whether to continue any interdiction of any document-destruction program, such as ongoing erasures of e-mails, voicemails, and other electronically recorded material.
- The number and names or general job titles or descriptions of custodians for whom ESI will be preserved (e.g., “HR head,” “scientist,” “marketing manager”).
- The list of systems, if any, that contain ESI not associated with individual custodians and that will be preserved, such as enterprise databases.
- Any disputes related to scope or manner of preservation.
- The identity of each party’s e-discovery liaison, who will be knowledgeable about and responsible for each party’s ESI.
Informal Discovery About Location and Types of Systems
- Identification of systems from which discovery will be prioritized (e.g., e-mail, finance, HR systems).
- Descriptions and location of systems in which potentially discoverable information is Stored.
- How potentially discoverable information is stored.
- How discoverable information can be collected from systems and media in which it is stored.
Proportionality and Costs
- The amount and nature of the claims being made by either party.
- The nature and scope of burdens associated with the proposed preservation and discovery of ESI.
- The likely benefit of the proposed discovery.
- Costs that the parties will share to reduce overall discovery expenses, such as the use of a common electronic-discovery vendor or a shared document repository, or other costsaving measures.
- Limits on the scope of preservation or other cost-saving measures.
- Whether there is relevant ESI that will not be preserved in accordance with Federal Rule of Civil Procedure 26(b)(1), requiring discovery to be proportionate to the needs of the case.
- The search method(s), including specific words or phrases or other methodology, that will be used to identify discoverable ESI and filter out ESI that is not subject to discovery.
- The quality-control method(s) the producing party will use to evaluate whether a production is missing relevant ESI or contains substantial amounts of irrelevant ESI.
- Whether it is appropriate to conduct discovery of ESI in phases.
- Sources of ESI most likely to contain discoverable information and that will be included in the first phases of Federal Rule of Civil Procedure 34 document discovery.
- Sources of ESI less likely to contain discoverable information from which discovery will be postponed or not reviewed.
- Custodians (by name or role) most likely to have discoverable information and whose ESI will be included in the first phases of document discovery.
- Custodians (by name or role) less likely to have discoverable information from whom
discovery of ESI will be postponed or avoided.
- The time period during which discoverable information was most likely to have been
created or received.
- The formats in which structured ESI (database, collaboration sites, etc.) will be produced.
- The formats in which unstructured ESI (e-mail, presentations, word processing, etc.) will be produced.
- The extent, if any, to which metadata will be produced and the fields of metadata to be produced.
- The production format(s) that ensure(s) that any inherent searchability of ESI is not degraded when produced.
- How any production of privileged or work-product protected information will be handled.
- Whether the parties can agree on alternative ways to identify documents withheld on the grounds of privilege or work product to reduce the burdens of such identification.
- Whether the parties will enter into a Federal Rule of Evidence 502(d) stipulation and order that addresses inadvertent or agreed production.
One Example Before the Games Begin
We are almost ready to play the e-Discovery Small, Medium or Large? Hive Mind Game. We will do so with thirty-two polls that are presented to the player in the same order as the Court’s checklist. To make sure the rules are clear (this is, after all, a game for lawyers, not kids) we start with an example, the first of the thirty-three items on the checklist. The court’s first item is to suggest that you Determine the range of creation or receipt dates for any ESI to be preserved.
The “right answer” to this first item is that this should be done in every case, even the small ones. You should always determine the date range of data to be preserved. In most cases that is very easy to do, and, as every lawyer should know, when in doubt, when it comes to preservation, always err on the side of inclusion. That means you should check the Small Case answer as shown in the “dummy poll” graphic below.
We have set these polls up so that you cannot see the results, but you can leave private comments. We may do this again later and experiment with what happens when you can see the results. We will share the results (and some comments) when the game ends on January 1, 2019.
Now for the live polls and game proper. Note that several of the checklist items, including number two and three, which are the first two polls shown below, are so long that we had to paraphrase and shorten them to fit in the space allocated in the polling software. To see the original of all thirty-three items on the checklist, go to my prior blog explaining the list (highly recommended) or the court’s page.
Let the Games Begin!
We are now ready to begin playing the e-Discovery Hive Mind Game. So get ready to plug-in. Select an answer to each of the thirty-two polls that follow. After you vote, you also have a chance to leave a private comment to each poll, but that is optional and will not impact your score.
Congratulations! You have finished the Game and made your contribution to the e-Discovery Hive Mind. Look for results sometime in early 2018. You can then determine how your answers compared with the collective Hive Mind.
I will also let you know how the Hive Mind answers compared with my own. So you will have two chances to win. Anyone who matches all of my answers wins a free lunch with me in Orlando. Other prizes have yet to be determined. Vendors care to contribute some goodies? Perhaps Elon will donate a free trip to Mars, where I for one hope we don’t run into any Borg cubes, I don’t care how good their Hive Mind is.
In the meantime, please encourage your e-discovery friends and colleagues to join in the game. Teachers and Partners are invited to require their students and associates, paralegals to play too. Resistance is futile! Digging deep into this checklist is a great way to expand your knowledge and expertise of electronic discovery law and practice.