Tag Archives: proportionality

July 15, 2025 · 11:43 AM

Courts Favor Targeted eDiscovery Collections, but It Is Up to In-House Teams to Enable Such Cost Saving Proportional Efforts

By John Patzakis

In-House Legal Teams Enable Cost Savings

Corporate legal departments face ever-increasing costs and risk related to eDiscovery, driven largely by excessive and indiscriminate data collection. Many organizations default to an overbroad “collect everything” approach out of an abundance of caution or due to inefficient workflows imposed by third-party service providers or even outside counsel. Over collection results in far higher costs upstream, critical delays and increased risk. However, for this reason courts consistently endorse proportional and targeted discovery practices that balance the needs of litigation with cost-effectiveness and reasonableness. But in order to best realize the benefits of proportionality, organizations should establish an in-house eDiscovery capability supported by best-practices technology.

Courts Support Proportional and Targeted ESI Collection
The Federal Rules of Civil Procedure (FRCP) emphasize proportionality and reasonableness in discovery. Specifically, Rule 26(b)(1) limits discovery to information that is relevant to any party’s claim or defense and proportional to the needs of the case.

Courts have routinely upheld this principle, encouraging parties to avoid overbroad collections:

  1. The Sedona Conference Principles
    While not binding, courts frequently rely on The Sedona Principles, which advocate for “reasonable and good faith efforts” to identify relevant ESI. (See The Sedona Principles, Third Edition, 19 Sedona Conf. J. 1 (2018)). Courts cite these principles to support reasonable limits on preservation and collection.
  2. In re Bard IVC Filters Prods. Liab. Litig., 317 F.R.D. 562 (D. Ariz. 2016)
    Here, the court recognized the proportionality limits of Rule 26(b)(1) and ruled that the defendant’s proposed targeted discovery approach—using custodians, date ranges, and agreed-upon search terms—satisfied its obligations.
  3. Oxbow Carbon & Minerals LLC v. Union Pacific Railroad Co., 322 F.R.D. 1 (D.D.C. 2017)
    The court rejected broad discovery requests that lacked proportionality, holding that the producing party could limit its search for ESI to agreed-upon custodians and relevant date ranges. The court emphasized that broad, burdensome demands are contrary to Rule 26(b)(1).
  4. Hernandez v. City of Houston, No. 4:16-CV-3577, 2020 WL 2542625 (S.D. Tex. May 19, 2020)
    Here, the court denied a motion to compel additional production of ESI beyond agreed search terms, explaining that the requested expansion was disproportionate given the marginal relevance and substantial burden of additional collection.

These and other decisions (further analysis available here) demonstrate that targeted, proportional collection efforts are not only defensible but expected by the courts. Overcollection is hardly mandated by the court and, in fact, can increase risk by preserving irrelevant or privileged information unnecessarily.

So, the problem is not the law. The challenge is that many eDiscovery service providers favor full disk imaging or other forms of massive data over-collection for two reasons: 1) As they are not integrated into a company’s IT data architecture with an established and repeatable process, they revert to a reactive, once-off effort to collect everything that could possibly be relevant; and 2) They are financially incentivized to collect as much data as possible.

Advantages of In-House eDiscovery Capabilities for Targeted Collections
To align with the principles of proportionality, legal departments should move away from the outsourced collection model that favors bulk extraction. Instead, maintaining an in-house eDiscovery capability provides the following key advantages:

  1. Integrated, Precise Search and Collection
    Solutions like X1 Enterprise are designed to index data in place, allowing corporate legal and IT teams to search, cull, and collect only what is relevant—without moving massive volumes of unnecessary data. This reduces costs and minimizes data exposure.
  2. Iterative, Defensible Process
    With in-house capabilities, legal teams can collaborate directly with IT to conduct collections iteratively. They can refine search criteria and custodians in real-time, in response to case developments or meet-and-confer negotiations, ensuring defensibility and responsiveness.
  3. Faster Response Times and Lower Costs
    Deeply integrated technology removes reliance on expensive, reactive third-party vendors who often require full data exports up front. By indexing data where it resides, in-house teams can respond quickly to litigation holds and discovery deadlines.
  4. Enhanced Compliance and Risk Management
    By avoiding massive data dumps, corporations reduce the risk of producing irrelevant, privileged, or sensitive data unnecessarily. Proportionality helps mitigate privacy risks and comply with data minimization principles under privacy laws like the GDPR and CCPA.
  5. Control and Repeatability Across Multiple Use Cases
    In-house solutions preserve institutional knowledge and workflows. Future cases can reuse workflows and search parameters, creating repeatable, consistent, and auditable processes. Further, the same process can be readily leveraged for various information governance and other compliance use cases.

Conclusion
Courts expect discovery to be proportional, targeted, and reasonable—not excessive or indiscriminate. Establishing an in-house eDiscovery capability with proven integrated technology like X1 Enterprise allows your organization to operationalize this legal standard. By doing so, you will reduce costs, minimize risks, and demonstrate good faith compliance with discovery obligations.

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Filed under Best Practices, CaCPA, Cloud Data, Corporations, ECA, eDiscovery, eDiscovery & Compliance, Enterprise eDiscovery, ESI, GDPR, m365, Preservation & Collection, proportionality

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October 17, 2024 · 1:59 PM

Dale vs. Deutsche Telekom AG Illustrates the Importance of Effective ECA to Attain Proportionality

By John Patzakis

In Dale v. Deutsche Telekom AG, No. 22 C 3189 (N.D. Ill. Oct. 4, 2024), a class-action antitrust litigation stemming from the 2020 merger between T-Mobile and Sprint, the Court denied the plaintiffs’ motion to expand a proposed custodian list from fifty custodians to sixty, including three in-house attorneys. The court stated that adding the additional custodians would be “out of proportion to the needs of the case.”

Magistrate Judge Jeffrey Cole began the order by quoting Vakharia v. Swedish Covenant Hosp.: “The discovery rules are not a ticket to an unlimited, never-ending exploration of every conceivable matter that captures an attorney’s interest. Parties are entitled to a reasonable opportunity to investigate the facts—and no more.” He also added: “The inescapable reality is that discovery has come to dominate civil litigation…Proportionality, like other concepts, it is not self-defining; it requires a common sense and experiential assessment…In other words, all are agreed that discovery has gotten out of hand over the years and needs to be reigned in.”

The Court’s opinion detailed the ill-fated negotiations between the parties, with a key take-away being the lack of visibility Deutsche Telekom’s in-house counsel had into their own custodians’ data, which stymied their ability to effectively eliminate guess work and limit the number of custodians. This case illustrates that while there is a keen awareness of proportionality in the legal community, realizing the benefits requires the ability to operationalize workflows as far upstream in the eDiscovery process as possible. For instance, when you are engaging in data over-collection, which in turn incurs extensive labor and processing costs, the ship has largely sailed before you are able to perform early case assessments and data relevancy analysis, as much of the discovery costs have already been incurred at that point. The case law and the Federal Rules provide that the duty to preserve only applies to potentially relevant information, but unless you have the right operational processes in place, you are losing out on the ability to attain the benefits of proportionality.

However, traditional eDiscovery services typically involve manual collection, followed by manual on-premises hardware-based processing, and finally manual upload to review. These inefficiencies extend projects by often weeks while dramatically increasing cost and risk with purposeful data over-collection and dozens of manual data handoffs. The good news is that solutions and processes addressing the first half of the EDRM involving collection and processing are now far more automated.

To accomplish the goals of gaining early visibility into your data to foster more intelligent early case assessment, informed discovery negotiations with opposing counsel, and targeted, proportional data collection, corporate legal department should utilize index and search in-place technology. Indexing and search in-place in this context means that a software-based indexing technology (as opposed to an expensive and cumbersome stand-alone hardware appliance) is deployed directly onto the laptop, file server or in the cloud for Microsoft 365 data sources. This indexing occurs without a bulk data transfer of the data. Once indexed, you can search through terabytes of information in seconds, with complex Boolean operators, metadata filters and regular expression searches. Legal teams can iterate and repeat their searches without limitation, which is critical for large data sets.

These capabilities supporting targeted and proportional collection of loose files, emails, and large network file shares and M365 are uniquely provided in the X1 Enterprise Platform.

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Filed under Best Practices, Case Law, eDiscovery, eDiscovery & Compliance, Enterprise eDiscovery, ESI, Information Governance, m365, Preservation & Collection, proportionality

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April 23, 2024 · 10:04 AM

Index-In-Place eDiscovery Tech is in High Demand, but Beware of False Vendor Claims

By John Patzakis

Proportionality-based eDiscovery is a goal that all in-house corporate legal teams want to attain. Under Federal Rule of Civil Procedure 26(b)(1), parties may discover any non-privileged material that is relevant to any party’s claim or defense and proportional to the needs of the case. However, most core eDiscovery costs (outside of attorney review) stem from over-collection of electronically stored information (ESI), and over-collection thwarts the ability to attain proportionality. Law firm Nelson Mullins notes that “over preservation tends to have its own costs relating to storage of large amounts of electronically stored information (ESI) and the resources needed to manage it; leads to increased downstream e-discovery costs associated with collection, processing, and review.”

This is why accurate pre-collection data insight is a game-changing capability that enables counsel to set reasonable discovery limits and ultimately process, host, review and produce much less ESI. Counsel can further use pre-collection proportionality analysis to gather key information, develop a litigation budget, and better manage litigation deadlines. Such insights can also foster cooperation by informing the parties early in the process about where relevant ESI is located, and what keywords and other search parameters can identify and pinpoint relevant ESI.

And the means to enable this capability is distributed index and search in-place technology. Indexing and search in-place in this context means that a software-based indexing technology is deployed directly onto fileservers, laptops, or in the cloud to address cloud-based data sources. This indexing occurs without a bulk transfer of the data to a central location. Once indexed, the searches are performed in a few seconds, with complex Boolean operators, metadata filters and regular expression searches. The searches can be iterated and repeated without limitation, which is critical for large data sets.

However, with this capability being highly valued, many vendors have parroted this messaging, but have offerings that do not qualify as true index-in-place. True distributed index-in-place means that the search indexes are forward-deployed, and are actually installed on the target laptop, Mac computer, fileserver or into the cloud near where the target cloud data sources exist. Transferring data in bulk to a central appliance or server farm via a collector agent or Robocopy function does not qualify. A true index-in-place capability uniquely enables scalability, targeted collection and also minimizes security and data governance risks in eDiscovery and information governance matters.

Conversely, a process requiring massive data copying, migration and centralization does not scale and creates significant data, governance and privacy issues by needlessly duplicating data. For instance, if a matter requires that 10 terabytes be scanned to determine if relevant ESI exists within that data corpus, and the eDiscovery collection platform being used has no index-in-place capability, then all 10 terabytes must be copied and transferred to the tool for indexing and analysis. These limitations stem from tool vendors simply utilizing open source indexing platforms like Lucene or Elastic Search that are not forward-deployable and must reside in centralized locations with a very large amount of computing resources to make them viable for the type of data and data volumes typically seen in discovery and information governance matters.

This is why X1 leverages proprietary and patented index and search technology that is readily forward deployable and thus can scale and allow true distributed indexing in-place. X1 Enterprise Collect significantly streamlines the eDiscovery workflow with integrated culling and deduplication, thereby eliminating the need for expensive and cumbersome ESI processing tools. That way, the ESI can be populated straight into Relativity from an X1 collection without multiple hand offs, extensive project management and inefficient data processing.

The ability to directly and transparently collect data from custodian laptops, desktops, Microsoft 365 and other cloud sources into a RelativityOne/Relativity workspace is a game-changer that enables attorneys to begin review in hours rather than weeks.

For a demonstration of the X1 Enterprise Collect Platform, contact us at sales@x1.com. For more details on this innovative solution, please visit www.x1.com/x1-enterprise-collect-platform.

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May 19, 2020 · 1:14 PM

True Proportionality for eDiscovery Requires Smart Pre-Collection Analysis

By John Patzakis

Proportionality-based eDiscovery is a goal that all judges and corporate attorneys want to attain. Under Federal Rule of Civil Procedure 26(b)(1), parties may  discover any non-privileged material that is relevant to any party’s claim or defense and proportional to the needs of the case. However attorneys representing enterprises are essentially flying blind on this analysis when it matters most. Prior to the custodian data being actually collected, processed and analyzed, attorneys do not have any real visibility into the potentially relevant ESI across an organization. This is especially true in regard to unstructured, distributed data, which is invariably the majority of ESI that is ultimately collected in a given matter.proportionality

If accurate pre-collection data insight were available to counsel, that game-changing factor would enable counsel to set reasonable discovery limits and ultimately process, host, review and produce much less ESI.  Counsel can further use pre-collection proportionality analysis to gather key information, develop a litigation budget, and better manage litigation deadlines. Such insights can also foster cooperation by informing the parties early in the process about where relevant ESI is located, and what keywords and other search parameters can identify and pinpoint relevant ESI.

The problem is any keyword protocols are mostly guesswork at the early stage of litigation, as, under outdated but still widely used eDiscovery practices, the costly and time consuming steps of actual data collection and processing must occur before meaningful proportionality analysis can take place. When you hear eDiscovery practitioners talk about proportionality, they are invariably speaking of a post-collection, pre-review process. But without requisite pre-collection visibility into distributed ESI, counsel typically resort to directing broad collection efforts, resulting in much greater costs, burden and delays.

X1 recently hosted a webinar featuring prominent industry experts including attorney David Horrigan of Relativity, Mandi Ross of Prism Litigation Technology and Ben Sexton of JND eDiscovery, addressing the issues of remote ESI collection and proportionality. David Horrigan outlined in succinct detail the legal concepts of proportionality under the Federal Rules, the Sedona Principles and as applied in case law. Mandi Ross explained how she applies proportionality when advising lawyers and judges through custodian interviews, coupled with detailed keyword search term analysis based upon the matter’s specific claims and defenses. She noted that technology such as X1 greatly enables the application of her practice in real time: “The ability to index in place is a game changer because we have the ability to gain insight into the data and validate custodian interview data without first requiring that data to be collected.”

The webinar also featured a live exercise performing a pre-collection proportionality analysis on remote employee data with X1 Distributed Discovery. The panelists provided comments and insights contrasting what they saw with the outdated, costly, and time consuming process involving manual data collection and subsequent migration into a hardware processing appliance. The later process negates counsel’s ability to conduct any meaningful application of proportionality, without first incurring significant expense and loss of time. A recording of the webinar can be accessed here.

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