If you are opposing ESI discovery as over-burdensome under Rule 26(b)(1), then you MUST provide evidence of the economic burden of the requested review. You cannot just say it is over-burdensome. Even if it seems obvious, you must provide some metrics, some data, some hard evidence to back that up. That requires the ability to estimate the costs and burdens involved in a document review. In the old days, the nineties, almost every litigator could estimate the cost of a paper review. It was not a tough skill. But today, where large volumes of ESI are common, everything is much more complicated. Today you need an expert to accurately and reliably estimate the costs of various types of ESI reviews.
Requiring proof of burden is nothing new to the law, yet most lawyers today need outside help to do it, especially in large ESI projects. For example, consider the defense team of lawyers representing the City of Chicago and other defendants in a major civil rights case with lots of press, Mann v. City of Chicago, Nos. 15 CV 9197, 13 CV 4531, (N.D. Ill. Sept. 8, 2017); Chicago sued for ‘unconstitutional and torturous’ Homan Square police abuse (The Guardian, 10/19/15). They did not even attempt to estimate the costs of the review they opposed. They also failed or refused to hire an expert who could do that for them. Sine they had no evidence, not even an estimate, their argument under Rule 26(b)(1) failed miserably.
Mann v. City of Chicago: Case Background
The background of the case is interesting, but I won’t go into the fact details here; just enough to set up the discovery dispute. Plaintiffs in later consolidated cases sued the City of Chicago and the Chicago police alleging that they had been wrongfully arrested, detained and abused at “off the books” detention centers without access to an attorney. Aside from the salacious allegations, it does not look like the plaintiffs have a strong case. It looks like a fishing expedition to me, in more ways than one as I will explain. With this background, it seems to me that if defendants had made any real effort to prove burden here, they could have prevailed on this discovery dispute.
The parties agreed on the majority of custodians whose ESI would be searched, but, as usual, the plaintiffs’ wanted more custodians searched, including that of the mayor himself, Rahm Emanuel. The defendants did not want to include the mayor’s email in the review. They argued, without any real facts showing burden, that the Mayor’s email would be irrelevant (a dubious argument that seemed to be a throw-away) and too burdensome (their real argument).
Here is how Magistrate Judge Mary M. Rowland summarized the custodian dispute in her opinion:
Plaintiffs argue Mayor Emanuel and ten members of his senior staff, including current and former chiefs of staff and communications directors are relevant to Plaintiffs’ Monell claim. (Id. at 5).[2] The City responds that Plaintiffs’ request is burdensome, and that Plaintiffs have failed to provide any grounds to believe that the proposed custodians were involved with CPD’s policies and practices at Homan Square. (Dkt. 74 at 1, 6). The City proposes instead that it search the two members of the Mayor’s staff responsible for liasoning with the CPD and leave “the door open for additional custodians” depending on the results of that search. (Id. at 2, 4).[3]
Another Silly “Go Fish” Case
As further background, this is one of those negotiated keywords Go Fish cases where the attorneys involved all thought they had the magical powers to divine what words were used in relevant ESI. The list is not shared, but I bet it included wondrous words like “torture” and “off the books,” plus every plaintiff’s favorite “claim.”
The parties agreed that the defendants would only review for relevant evidence the ESI of the custodians that happened to have one or more of the keyword incantations they dreamed up. Under this still all to common practice the attorneys involved, none of whom appear to have any e-discovery search expertise, the majority of documents in the custody of the defense custodians would never be reviewed. They would not be reviewed because they did not happen to have a “magic word” in them. This kind of untested, keyword filtering agreement is irrational, archaic and not a best practice in any but small cases, but that is what the attorneys for both sides agreed to. They were convinced they could guess that words were used by police, city administrators and politicians in any relevant document. It is a common delusion facilitated by Google’s search of websites.
When will the legal profession grow up and stop playing Go Fish when it comes to a search for relevant legal evidence? I have been writing about this for years. Losey, R., Adventures in Electronic Discovery (West 2011); Child’s Game of ‘Go Fish’ is a Poor Model for e-Discovery Search. Guessing keywords does not work. It almost always fails in both precision and recall. The keyword hits docs are usually filled with junk and relevant docs often used unexpected language, not to mention abbreviations and spelling errors. If you do not at least test proposed keywords on a sample custodian, then your error rate will multiply. I saw a review recently where the precision rate on keywords was only six percent, and that is with superficial feedback, i.w. – unskilled testing. You never want to waste so much attorney time, even if you are reviewing at low rates. The ninety-four irrelevant docs to find six is an inefficient expensive approach. We try to improve precision without a significant loss of recall.
When I first wrote about Go Fish and keywords back in 2010 most everyone agreed with me, even if they disagreed on the significance, the meaning and what you should do about it. That started the proportionality debate in legal search. E-Discovery search expert Judges Peck and Scheindlin joined in the chorus of criticism of negotiated keywords. National Day Laborer Organizing Network v. US Immigration and Customs Enforcement Agency, 877 F.Supp.2d 87 (SDNY, 2012) (J. Scheindlin) (“As Judge Andrew Peck — one of this Court’s experts in e-discovery — recently put it: “In too many cases, however, the way lawyers choose keywords is the equivalent of the child’s game of `Go Fish’ … keyword searches usually are not very effective.” FN 113“); Losey, R., Poor Plaintiff’s Counsel, Can’t Even Find a CAR, Much Less Drive One (9/1/13). Don’t you love the quote within a quote. A rare gem in legal writing.
Judge Rowland’s Ruling
I have previously written about the author of the Mann v. City of Chicago opinion, Judge Mary Rowland. Spoliated Schmalz: New Sanctions Case in Chicago That Passes-Over a Mandatory Adverse Inference. She is a rising star in the e-discovery world. Judge Rowland found that the information sought from the additional custodians would be relevant. This disposed of the defendants first and weakest argument. Judge Rowland then held that Defendants did not meet the burden of proof “—failing to provide even an estimate—” and for that reason granted, in part, Plaintiffs’ motion to compel, including their request to add the Mayor. Judge Rowland reviewed all six of the proportionality factors under Rule 26(b)(1), including the importance of the issues at stake and the plaintiffs’ lack of access to the requested information.
On the relevance issue Judge Rowland held that, in addition to the agreed-upon staff liaisons, the Mayor and his “upper level staff” might also have relevant information in their email. As to the burden argument, Judge Rowland held that the City did not “offer any specifics or even a rough estimate about the burden.” Judge Rowland correctly rejected the City’s argument that they could not provide any such information because “it is impossible to determine how many emails there may be ‘unless the City actually runs the searches and collects the material.’” Instead, the court held that the defendants should have at least provided “an estimate of the burden.” Smart Judge. Here are her words:
The City argues that it will be “burdened with the time and expense of searching the email boxes of nine (9) additional custodians.” (Dkt. 74 at 5). The City does not offer any specifics or even a rough estimate about the burden. See Kleen Prods. LLC 2012 U.S. Dist. LEXIS 139632, at *48 (“[A] party must articulate and provide evidence of its burden. While a discovery request can be denied if the `burden or expense of the proposed discovery outweighs its likely benefit,’ Fed. R. Civ. P. 26(b)(2)(C)(iii), a party objecting to discovery must specifically demonstrate how the request is burdensome.”) (internal citations and quotations omitted).
As the Seventh Circuit stated in Heraeus Kulzer, GmbH, v. Biomet, Inc., 633 F.3d 591, 598 (7th Cir. 2011):
[The party] could have given the district court an estimate of the number of documents that it would be required to provide Heraeus in order to comply with the request, the number of hours of work by lawyers and paralegals required, and the expense. A specific showing of burden is commonly required by district judges faced with objections to the scope of discovery . . . Rough estimates would have sufficed; none, rough or polished, was offered.
The City argues in its sur-reply that it is impossible to determine how many emails there may be “unless the City actually runs the searches and collects the material.” (Dkt. 78-1 at 4). Still, the City should have provided an estimate of the burden. The Court is not convinced by the City’s argument about the burden.
Judge Rowland also held that the City should have addressed the “other Rule 26 factors—the importance of the issues and of the discovery in resolving the issues, and the parties’ relative access to information and their resources.” She noted that these other factors: “weigh[ed] in favor of allowing discovery of more than just the two custodians proposed by the City.” However, the court declined to compel the search of four proposed custodians based on their “short tenure” or the “time during which the person held the position,” concluding the requested searches were “not proportional to the needs of the case.”
Judge Rowland’s opinion notes with seeming surprise the failure of the City of Chicago to provide any argument at all on the five non-economic factors in Rule 26(b)(1). I do not fault them for that. Their arguments on these points were necessarily weak in this type of case, but a conciliatory gesture, a polite acknowledgement showing awareness, might have helped sweeten the vinegar. As it is, they came across as oblivious to the full requirements of the Rule.
What Chicago Should Have Done
What additional information should the defendants have provided to oppose the search and review of the additional nine custodians, including the Mayor’s email? Let’s start with the obvious. They should have shared the total document count and GB size of the nine custodians, and they should have broken that information down on a per-custodian basis. Then they should have estimated the costs to review that many emails and attachments.
The file count information should have been easy to ascertain from the City’s IT department. They know the PST sizes and can also determine, or at least provide a good estimate of the total document count. The problem they had with this obvious approach is that they wanted a keyword filter. They did not want to search all documents of the custodians, only the ones with keyword hits. Still, that just made the process slightly more difficult, not impossible.
Yes, it is true, as defendant’s alleged, that to ascertain this supporting information, they would have to run the searches and collect the material. So what? Their vendor or Chicago IT department should have helped them with that. It is not that difficult or expensive to do. No expensive lawyer time is required. It is just a computer process. Any computer technician could do it. Certainly any e-discovery vendor. The City could easily have gone ahead and done the silly keyword filtering and provide an actual file count. This would have provided the City some hard facts to support their burden argument. It should not be that expensive to do. Almost certainly the expense would have been less than this motion practice.
Alternatively, the City could have at least estimated the file count and other burden metrics. They could have made reasonable estimated based on their document review experience in the case so far. They had already reviewed uncontested custodians under their Go Fish structure, so they could have made projections based on past results. Estimates made by projections like this would probably have been sufficient in this case and was certainly better than the track they chose, not providing any information at all.
Another alternative, the one that would have produced the most persuasive evidence, would be to load the filtered ESI of at least a sample of the nine custodians, including the Mayor. Then begin the review, say for a couple of days, and see what that costs. Then project those costs for the rest of the review and rest of the custodians. By this gold standard approach you would not only have the metrics from the data itself — the file counts, page counts, GB size — but also metrics of the document review, what it costs.
You would need to do this on the Mayor’s email separately and argue this burden separately. The Mayor’s email would likely be much more expensive to review than any of the other custodians. It would take attorneys longer to review his documents. There would be more privileged materials to find and log and there would be more redactions. It is like reviewing a CEO’s email. If the attorneys for the City had at least begun some review of Emanuel’s email, they would have been able to provide extensive evidence on the cost and time burden to complete the review.
I suspect the Mayor was the real target here and the other eight custodians were of much less importance. The defense should have gauged their response accordingly. Instead, they did little or nothing to support their burdensome argument, even with the Mayor’s sensitive government email account.
We have a chance to learn from Chicago’s mistake. Always, at the very least, provide some kind of an estimate of the burden. The estimate should include as much information as possible, including time and costs. These estimates can, with time and knowledge, be quite accurate and should be used to set budgets, along with general historical knowledge of costs and expenses. The biggest problem now is a shortage of experts on how to properly estimate document review projects, specifically large ESI-only projects. I suggest you consult with such an cost-expert anytime you are faced with a disproportionate ESI review demands. You should do so before you make final decisions or reply in writing.
Conclusion
Mann v. City of Chicago is one of those cases where we can learn from the mistakes of others. At least provide an estimate of costs in every dispute under Rule 26(b)(1). Learn to estimate the costs of document reviews. Either that or hire an expert who can do that for you, one that can provide testimony. Start with file counts and go from there. Always have some metrics to back-up your argument. Learn about your data. Learn what it will likely cost to review that data. Learn how to estimate the costs of document reviews. It will probably be a range. The best way to do that is by sampling. With sampling you at least start the document review and estimate total costs by projection of what it has actually cost to date. There are fewer speculative factors that way.
If you agree to part of the review requested, for instance to three out of ten custodians requested, then do that review and measure its costs. That creates the gold standard for metrics of burden under Rule 26(b)(1) and is, after all, required in any objections under Rule 34(b)(2)(B)&(C). See: Judge Peck Orders All Lawyers in NY to Follow the Rules when Objecting to Requests for Production, or Else ….
For more on cost burden estimation listen to my upcoming Ed-Talk on the subject, Proportional Document Review under the New Rules and the Art of Cost Estimation.
Posted by Ralph Losey 
Great fanfare was provided for the changes to the Federal Rules of Civil Procedure in December 2015. But not much attention has been given to the December 2017 changes to the 
In December 2017 two new subsections were added to 
Rule 902. Evidence That Is Self-Authenticating
The rule change is a helpful addition to the litigator’s toolkit, but many challenges remain for attorneys handling electronic evidence. I agree with 
Recognizing the problem Kevin Brady teamed up with U.S. District Court Judge Paul Grimm, the leading judicial expert in the field, to create the Grimm/Brady Evidence Admissibility Chart shown below.
This is a guest blog by a friend and colleague, 
With its emphasis on investigation and fact-gathering; culling relevant information from marginally useful materials; and decision-making on how such information should be disclosed and presented to adversaries, The Post features key traits associated with sophisticated discovery counsel.
While all of the factors may be significant, monetary considerations – elements of which are found in both the “amount in controversy” and “burden or expense” factors – frequently predominate a proportionality analysis. As 
Essential to Oxbow’s holding were 
For counsel who wish to better understand the role of metrics in discovery, the directive to “follow the money” will bring them to 
Duffy and Solo reinforce the critical interplay between metrics, proportionality, and money. Just like Oxbow, the responding parties from Duffy and Solo could hardly expect to substantiate arguments regarding undue burden and disproportionality without metrics. Indeed, the court in Duffy initially rejected such arguments when defendant failed to support them with actual information. However, by disclosing metrics with reasonable estimates of time, manpower, and costs, Duffy and Solo resulted in production orders more consistent with proportionality limitations.
The popular, but ineffective Go Fish approach is like the Classical Information Retrieval Model in that only a single list of keywords is used as the query. The keywords are not refined over time as the documents are reviewed. This is a mono-modal process. It is contradicted by our evolving multimodal process, Step One in our Six-Step plan. In the first step we run many, many searches and review some of the results of each search, some of the documents, and then change the searches accordingly.
Each search run is sampled by quick reviews and its effectiveness evaluated, tested. For instance, did a search of what you expected would be an unusual word turn up far more hits than anticipated? Did the keyword show up in all kinds of documents that had nothing to do with the case? For example, a couple of minutes of review might show that what you thought would be a carefully and rarely used word, Privileged, was in fact part of the standard signature line of one custodian. All his emails had the keyword Privileged on them. The keyword in these circumstances may be a surprise failure, at least as to that one custodian. These kind of unexpected language usages and surprise failures are commonplace, especially with neophyte lawyers.
There are many computer search tools used in a multimodal search method, but the most important tool of all is not algorithmic, but human. The most important search tool is the human ability to think the whole time you are looking for tasty berries. (The all important “T” in Professor Bates’ diagram above.) This means the ability to improvise, to spontaneously respond and react to unexpected circumstances. This mean ad hoc searches that change with time and experience. It is not a linear, set it and forget it, keyword cull-in and read all documents approach. This was true in the early days of automated search with Professor Bates berrypicking work in the late 1980s, and is still true today. Indeed, since the complexity of ESI has expanded a million times since then, our thinking, improvisation and teamwork are now more important than ever.
Once you have created effective searches that produce an affordable number of documents to review for production, you articulate the Plan and make some disclosures about your plan. The extent of transparency in this step can vary considerably, depending on the circumstances and people involved. Long talkers like me can go on about legal search for many hours, far past the boredom tolerance level of most non-specialists. You might be fascinated by the various searches I ran to come up with the say 12,472 documents for final review, but most opposing counsel do not care beyond making sure that certain pet keywords they may like were used and tested. You should be prepared to reveal that kind of work-product for purposes of dispute avoidance and to build good will. Typically they want you to review more documents, no matter what you say. They usually save their arguments for the bottom line, the costs. They usually argue for greater expense based on the first five criteria of Rule 26(b)(1):
The last step is transfer of the appropriate information to the requesting party and designated members of your team. Production is typically followed by later delivery of a Log of all documents withheld, even though responsive or relevant. The withheld logged documents are typically: Attorney-Client Communications protected from disclosure under the client’s privilege; or, Attorney Work-Product documents protected from disclosure under the attorney’s privilege. Two different privileges. The attorney’s work-product privilege is frequently waived in some part, although often very small. The client’s communications with its attorneys is, however, an inviolate privilege that is never waived.
In this essay I have shown the method I use in document reviews to control costs by use of estimation and multimodal search. I call this a Bottom Line Driven approach. The six step process is designed to help uncover the costs of review as part of the review itself. This kind of experienced based estimate is an ideal way to meet the evidentiary burdens of a proportionality objection under revised Rules 26(b)(1) and 32(b)(2). It provides the hard facts needed to be specific as to what you will review and what you will not and the likely costs involved.
Ralph has long been a leader of the world's tech lawyers. He has presented at hundreds of legal conferences and CLEs around the world. Ralph has written over two million words on e-discovery and tech-law subjects, including seven books. He is also the founder of 
Ralph is a specialist who has limited his legal practice to electronic discovery and tech law since 2006. He has a special interest in software and the search and review of electronic evidence using 
