More on proportionality and civility

Ralph Losey’s E-Discovery Team blog is my absolute favorite blog, by a long-shot even. I have not read the 185 page opinion in the October John B. v. Goetz case from Tennessee in October, but thought I’d pass on the link to Mr. Losey’s case comment because of the recent Osborne Report on civil justice reform in Ontario, which stresses the ever-increasing importance of proportionality and civility in maintaining an accessible civil justice system.

In the Goetz case the Court renewed a motion to compel discovery that would cost the defendants up to $10 million. Mr. Losey dissects District Court Judge William Haynes Jr.’s proportionality-based reasoning and also comments about his unique (and ultimately unsuccessful) attempt to facilitate dispute resolution. This attempt involved excluding counsel from the process of protocol building and turning that process over to the parties’ IT experts alone. Mr. Losey comments:

Judge Haynes seemed to be onto something here. By simply requiring experts to hash out agreements on technical e-discovery issues by themselves, these disputes could be resolved quickly and relatively inexpensively. Judge Haynes’ idea to transcend the adversarial process, at least for purposes of e-discovery, is in line with that of most experts. They all agree that complex e-discovery issues do not lend themselves to effective solution in the adversarial model. Complex technical issues are best solved with a degree of cooperation and transparency previously unheard of in our adversarial system. The Bench and Bar are being pushed in this new, and some would say “radical,” peaceful-collaborative direction out of necessity. The traditional “hide the ball” model simply does not work in complex ESI discovery. It frequently costs the parties far more than the case is worth, and can produce huge, time consuming, and sometimes outcome dispositive mistakes.

I’d encourage you to and add E-discovery Team to your feed reader and check out Mr. Losey’s comment on the Goetz case, which is posted here.