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.
Next Gen eDiscovery Law & Tech Blog 