Every judge who has ever struggled with discovery issues wishes that the lawyers involved had a better understanding of proportionality, that they had spent more time really thinking about how it applies to the requisites of their case. So too does every lawyer who, like me, specializes in electronic discovery. As Chief Justice Roberts explained in his 2015 Year-End Report on the Federal Judiciary on the new rules on proportionality:
The amended rule states, as a fundamental principle, that lawyers must size and shape their discovery requests to the requisites of a case. Specifically, the pretrial process must provide parties with efficient access to what is needed to prove a claim or defense, but eliminate unnecessary or wasteful discovery. The key here is careful and realistic assessment of actual need.
Proportionality and reasonableness arise from conscious efforts to realistically assess actual need. What is the right balance in a particular situation? What are the actual benefits and burdens involved? How can you size and shape your discovery requests to the requisites of a case?
There is more to proportionality than knowing the rules and case law, although they are a good place to start. Proportionality is a deep subject and deserves more than black letter law treatment. 2015 e-Discovery Rule Amendments: Dawning of the “Goldilocks Era” (e-discoveryteam.com, 11/11/15) (wherein I discuss proportionality, the Golden Ratio or perfect proportionality, aka Φ, which is shown in this graphic and much more, including the spooky “coincidence” at a CLE with Judge Facciola and the audience vote). Also see: Giulio Tononi, Phi Φ, a Voyage from the Brain to the Soul (Pantheon Books, 2012) (book I’m rereading now on consciousness and integrated information theory, another take on Phi Φ).
We want everyone in the field to think about proportionality. To be conscious of it, not just have information about it. What does proportionality really mean? How does it apply to the e-discovery tasks that you carry out every day? How much is enough? Too much? Too burdensome? Too little? Not enough? Why?
What is a reasonable effort? How do you know? Is there perfect proportionality? One that expresses itself in varying ways according to the facts and circumstances? Does Law follow Art? Is Law an Art? Or is it a Science? Is there Beauty in Law? In Reason? There is more to proportionality than meets the eye. Or is there?
Getting people to think about proportionality is one of the reasons I created the Hive Mind game that I announced in my blog last week: “e-Discovery: Small, Medium of Large?”
This week’s blog continues that intention of getting lawyers to think about proportionality and the requisites of their case. It concludes with a word document designed to make it easier to play along with your own group, class or CLE event. What discovery activities required in a Big Case are not necessary in a Small Case, or even a Medium Sized case? That is what requires thought and is the basis of the game.
Rules of Federal Procedure
Proportionality is key to all discovery, to knowing the appropriate size and shape of discovery requests in order to fit the requisites of a case. Reading the rules that embody the doctrine of proportionality is a good start, but just a start. The primary rule to understand is how proportionality effects the scope of relevance as set forth in Rule 26(b)(1), FRCP:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.
But you also need to understand how it impacts a lawyer’s overall duty to supervise a discovery request and response as set forth in Rule 26(g). See Rule 26(g)(1)(B)(iii), FRCP:
neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.
Many other rules have concepts of proportionality either expressly or implicitly built in, including Rule 26(b)(2)(B) (not reasonably accessible); Rule 26(b)(2)(C)(i) (cumulative); Rule 1 (just, speedy and inexpensive), Rule 34, Rule 37(e), Rule 45.
Case Law
Reading the key cases is also a help, indispensable really, but reading what the judges say is not enough either. Still you need to keep up with the fast growing case law on proportionality. See for instance the fine collection by K&L Gates at: https://www.ediscoverylaw.com/?s=proportionality and the must-read, The Sedona Conference Commentary on Proportionality_May 2017. Here a few of my favorites cases:
- In re Bard IVC Filters Prods. Liab. Litig., D. Ariz., No. MDL 15-02641-PHX DGC, 2016 U.S. Dist. LEXIS 126448 (D. Ariz. Sept. 16, 2016). In this must-read opinion District Judge David G. Campbell, who was the chair of the Rules Committee when the 2015 amendments were passed, takes both lawyers and judges to task for not following the new rules on proportionality. He then lays it all out in a definitive manner.
- In re Takata Airbag Prods. Liab. Litig., No. 15-02599-CIV-Moreno, MDL No. 5-2599 (S.D. Fla. Mar. 1, 2016). Judge Moreno quotes Chief Justice Roberts’ comments in the 2015 Year-End Report that the newly amended Fed.R.Civ.Pro. 26 “crystalizes the concept of reasonable limits in discovery through increased reliance on the common-sense concept of proportionality.” 2015 Year-End Report on the Federal Judiciary.
- Hyles v. New York City, No. 10 Civ. 3119 (AT)(AJP), 2016 WL 4077114 (S.D.N.Y. Aug. 1, 2016) (Judge Peck: “While Hyles may well be correct that production using keywords may not be as complete as it would be if TAR were used, the standard is not perfection, or using the “best” tool, but whether the search results are reasonable and proportional. Cf. Fed. R. Civ. P. 26(g)(1)(B)”)
- Johnson v Serenity Transportation, Case No. 15-cv-02004-JSC (N.D. Cal. October 28, 2016) (“… a defendant does not have discretion to decide to withhold relevant, responsive documents absent some showing that producing the document is not proportional to the needs of the case.”)
- Apple Inc. v. Samsung Elecs. Co., No. 12-CV-0630-LHK (PSG), 2013 WL 4426512, 2013 U.S. Dist. LEXIS 116493 (N.D. Cal. Aug. 14, 2013) (“But there is an additional, more persuasive reason to limit Apple’s production — the court is required to limit discovery if “the burden or expense of the proposed discovery outweighs its likely benefit.” This is the essence of proportionality — an all-to-often ignored discovery principle. Because the parties have already submitted their expert damages reports, the financial documents would be of limited value to Samsung at this point. Although counsel was not able to shed light on exactly what was done, Samsung’s experts were clearly somehow able to apportion the worldwide, product line inclusive data to estimate U.S. and product-specific damages. It seems, well, senseless to require Apple to go to great lengths to produce data that Samsung is able to do without. This the court will not do.“)
- PTSI, Inc. v. Haley, 2013 WL 2285109 (Pa. Super. Ct. May 24, 2013) (“… it is unreasonable to expect parties to take every conceivable step to preserve all potentially relevant data.”)
- Kleen Products, LLC, et al. v. Packaging Corp. of Amer., et al., Case: 1:10-cv-05711, Document #412 (ND, Ill., Sept. 28, 2012).
Also see: The Top Twenty-Two Most Interesting e-Discovery Opinions of 2016 (e-discoveryteam.com, 1/2/17) (the following top ranked cases concerned proportionality: 20, 18, 17, 15, 14, 11, 6, 4, 3, 2, 1); and, Good, Better, Best: a Tale of Three Proportionality Cases – Part Two (e-discoveryteam.com 4/8/12) (includes collection of earlier case law).
Sedona Commentary
The Sedona Conference Commentary on Proportionality_May 2017 is more than a collection of case law. It includes commentary hashed out between competing camps over many years. The latest 2017 version includes Six Principles that are worthy of study. They can certainly help you in your own analysis of proportionality. The cited case law in the Commentary is structured around these six principles.
THE SEDONA CONFERENCE PRINCIPLES OF PROPORTIONALITY
Principle 1: The burdens and costs of preserving relevant electronically stored information should be weighed against the potential value and uniqueness of the information when determining the appropriate scope of preservation.
Principle 2: Discovery should focus on the needs of the case and generally be obtained from the most convenient, least burdensome, and least expensive sources.
Principle 3: Undue burden, expense, or delay resulting from a party’s action or inaction should be weighed against that party.
Principle 4: The application of proportionality should be based on information rather than speculation.
Principle 5: Nonmonetary factors should be considered in the proportionality analysis.
Principle 6: Technologies to reduce cost and burden should be considered in the proportionality analysis.
Conclusion
Proportionality is one of those deep subjects where you should think for yourself, but also be open and listen to others. It is possible to do both, although not easy. It is one of those human tricks that will make us hard to replace by smart machines. The game I have created will help you with that. Try out the Small, Medium or Large? proportionality game by filling out the online polls I created.
But, you can do more. You can lead discussions at your law firm, company, class or CLE on the subject. You can become an e-discovery proportionality Game-Master. You can find out the consensus opinion of any group. You can observe and create statistics of how the initial opinions change when the other game players hear each others opinions. That kind of group interaction can create the so-called hive-effect. People often change their mind until a consensus emerges.
What is the small, medium or large proportionality consensus of your group? Even if you just determine majority opinion, and do not go through an interactive exercise, you are learning something of interest. Plus, and here is the key thing, you are giving game players a chance to exercise their analytical skills.
To help you to play this game on your own, and lead groups to play it, I created a Word Document that you are welcome to use.
Game-Master-Hive-Mind_e-Discovery_Proportionality_GAME
Posted by Ralph Losey 
The most complete set of AI ethics developed to date, the 
Other groups are concerned with AI ethics and regulation, including research guidelines. See the 
The proposed first principle is good, but the wording? Not so much. The goal of AI research should be to create not undirected intelligence, but beneficial intelligence. This is a double-negative English language mishmash that only an engineer could love. Here is one way this principle could be better articulated:
The restriction to beneficial intelligence is somewhat controversial, but the other side of this first principle is not. Namely, that research should 
Still, what about autonomous weapons? Is research into advanced AI in this area beneficial? Are military defense capabilities beneficial? Pro-security? Is the slaughter of robots not better than the slaughter of humans? Could robots be more ethical at “soldiering” than humans? As attorney 
The second principle of Funding is more than an enforcement mechanism for the first, that you should only fund beneficial AI. It is also a recognition that ethical work requires funding too. This should be every lawyer’s favorite AI ethics principle. Investments in AI should be accompanied by funding for research on ensuring its beneficial use, including thorny questions in computer science, economics, law, ethics, and social studies. The principle then adds a list of five bullet-point examples.
The economic issues raised by the second example are very important: How can we grow our prosperity through automation while maintaining people’s resources and purpose? We do not want a system that only benefits the top one percent, or top ten percent, or whatever. It needs to benefit everyone, or at least try to. Also see Asilomar Principle Fifteen: Shared Prosperity: The economic prosperity created by AI should be shared broadly, to benefit all of humanity.
We have seen the tension between “speedy” and “inexpensive” on the one hand, and “just” on the other in Rule One of the Federal Rules of Civil Procedure and e-discovery. When applied using active machine learning a technical solution was attained to these competing goals. The predictive coding methods we developed allowed for both precision (“speedy” and “inexpensive”) and recall (“just”). Hopefully this success can be replicated in other areas of the law where machine learning is under proportional control by experienced human experts.
This principle is fairly straightforward, but will in practice require a great deal of time and effort to be done right. A constructive and healthy exchange between AI researchers and policy-makers is necessarily a two-way street. It first of all assumes that policy-makers, which in most countries includes government regulators, not just industry, have a valid place at the table. It assumes some form of government regulation. That is anathema to some in the business community who assume (falsely in our opinion) that all government is inherently bad and essentially has nothing to contribute. The countervailing view of overzealous government controllers who just want to jump in, uninformed, and legislate, is also discouraged by this principle. We are talking about a healthy exchange.
It does not take an AI to know this kind of give and take and information sharing will involve countless meetings. It will also require a positive healthy attitude between the two groups. If it gets bogged down into an adversary relationship, you can multiply the cost of compliance (and number of meetings) by two or three. If it goes to litigation, we lawyers will smile in our tears, but no one else will. So researchers, you are better off not going there. A constructive and healthy exchange is the way to go.
The need for a good culture applies in spades to the research community itself. The Fourth Principal states: A culture of cooperation, trust, and transparency should be fostered among researchers and developers of AI. This favors the open source code movement for AI, but runs counter to the trade-secret business models of many corporations. See Eg.:
The Fifth Principle is a tough one, but very important: Teams developing AI systems should actively cooperate to avoid corner-cutting on safety standards. Moving fast and breaking things may be the mantra of Silicon Valley, but the impact of bad AI could be catastrophic. Bold is one thing, but reckless is quite another. In this area of research there may not be leisure for constant improvements to make things right. 
Our addiction to smart phone and social media has led to unintended negative consequences. We are in danger of becoming vapid carbon-based consumption machines. We are already extremely vulnerable to foreign power social manipulation, to propagandists and hostile mind-meddlers of all kinds. We are living in very dangerous times where information floods and confuses us all. 
This is a rare blog where I write about someone else’s article – a blog about a blog. To make this more bizarre, the blog I’m moved to write about is a blog about a book, which I have been meaning to write about myself. So yes, this is a blog about a blog about a book that was almost a blog. But I get ahead of myself with this useless metadata. The blog that caught my interest is called: 
The inspiration of Arianna’s blog is the latest popular book in AI, one that I am also quite enamored by, 
Max Tegmark, the founder of the 
This danger of information without knowledge or wisdom is one of the themes in my theory of the impact of technology on society. 
As I said before, and feel compelled to say again, this is a serious issue that requires immediate action, if not voluntarily by social media providers, such as Facebook and Twitter, then by law. 
We cannot afford to have another election hijacked by secret AIs posing as real people, either on Twitter, Facebook or elsewhere. Legal changes under the current Administration are unlikely, so too are real changes by big corporate America. That means it is up to us, everyday citizens, to be vigilant against the AI enhanced propaganda. Do not count on big government to save you. Count on the Constitution and our legal system. That branch of the government is still functional and honest. Count on yourself, your inner wisdom. Self reliance is the American way. Trust that smart, skeptical Americans are a majority and will ultimately prevail over all would be dictators, imbeciles and geniuses alike. But verify. Exercise your rights, including especially your rights of free speech, assembly and to vote. Never give up and sink into mere vapid carbon-based consumption machines.
Arianna, who is herself a master of social influence and media, understands this danger all too well. Again, to 
The Founding Fathers enacted the Bill of Rights to protect U.S. citizens from our own government. Distrust of government is hardwired into our Constitution. Follow the Constitution. Fight oppression. If you have sworn an oath to uphold the Constitution, including the all-important Bill of Rights, as I have, then be true to your oath. Trust no one. Including especially the government and its political leaders. That is the wisdom of our Founding Fathers. The same applies in spades to what foreign governments say or do, especially the dictatorships that we see in Russia and China, to name just a few. Do not count on the FBI to protect you. Be skeptical. Verify everything. Demand proof. Get to the truth. The same distrust should apply to all big organizations, including the new technology companies. Do not click away your soul. You are more than a machine. Fight addiction to social media.
The problem is ours to solve, both by AI Ethics principles and law, but also by our everyday conduct. Again, to quote the concluding words to Arianna’s article 
