The problem with proportionality analyses is that they make no provision for distortion of cost attributable to incompetence and disorganization. They simply accept the unacceptable and make it their baseline.
Each time I read lawyers' assessment of the justice system as "broken" and see e-discovery blamed, I wonder if the commentators bring sufficient skill respecting ESI and information systems to the table. Are they using cost-effective methods and forms? Are they fully conversant in the nature, location and volume of the client's systems and ESI? Have they been transparent and cooperative in dealing with the other side? Did they really perform well, only to find themselves at the mercy of a craven opponent and crazed judge? Or are they conveniently ignoring how their own failings with ESI contribute to waste and excess?
On Friday, I asked several of the most respected lawyer-experts in e-discovery how much, if any, of the current cost of electronic discovery they attribute to waste, and how much of that waste was the result of lawyer incompetence. I was shocked by what I heard--not because I disagreed with the numbers but because of the consensus and conviction with which they were offered.
One of the top commentators said, "80% and 80%." No one got below 70% in estimating the waste, nor below 80% laying blame at the lawyers' feet.
If they're right--and I expect they're close--we pay five times too much for e-discovery simply because we don't do it well enough to eliminate needless waste. Two-thirds of the money spent on e-discovery is wasted solely because the lawyers have little or no idea what they are doing. The upshot is that those pushing the proportionality agenda make no provision for competence nor demand the elimination of the waste. What's spent on e-discovery shouldn't be compared to any assumed "value" of a case until waste and incompetence are first factored out. Else, the changes proposed reward the most incompetent wastrels who spend the fastest with least to show for the effort and expense.
In principle, I applaud proportionality. It's a concept, like "reasonableness" or "good cause" that sounds like mom and apple pie, until it's a stalking horse to keep proof of misconduct from seeing the light of day. The argument that you don't spend $15,000.00 in discovery on a $14,000.00 case is unassailable; but, it doesn't hold water if that $15,000.00 would have been $3,000.00 had the money had been sensibly spent. Some people flogging the proportionality agenda are hellbent on preserving the status quo of incompetence and waste; so much so, that it permeates all of their anecdotal "evidence" and valuations. Others just don't have enough experience with a proper e-discovery effort to recognize that massive waste isn't something we must accept.
If those pushing for "reform" arrived with the knowledge and experience to do e-discovery efficiently and well, I'd credit their campaign. But absent that competence--incapable of discerning the difference between waste and well-done--theirs is a sad, selfish spectacle that serves to delay the inevitable. Are we not everywhere confronted with the corrosion of demanding too little of ourselves and lowering standards in everything? Let's face the real problem, not establish incompetence as the new "good enough."
And let's lay the blame where it belongs. Lawyers' unwillingness to master electronic evidence is the gash in the side of this Titanic. Tinkering with the Rules again is rearranging deck chairs when we should be figuring out how to fill the lifeboats. The Rules are fine. Their execution is not.
Evidence is digital. That's not changing. Embrace the inevitable. We don't need conferences to mourn the passing of paper. We need Manhattan Projects to educate lawyers about ESI.