By Brian Schrader
Every once in a while, from a corner of the eDiscovery industry, comes something unexpected and hugely consequential. The latest comes from the Arizona and Illinois federal courts, where a pilot program for speeding up eDiscovery was launched recently. While the primary goals of the “Mandatory Initial Discovery Pilot Project” are laudable, a lot of industry experts and commentators – including us – are sounding alarms.
One of our favorite blogs, Above the Law, recently did a nice summary, which can be read here. And you can read up on the program and watch some informative videos on the Federal Judicial Center (FJC) website here.
While the program has the greatest of intentions – to simplify, speed up and reduce the costs of discovery (all discovery, not just eDiscovery) – there are aspects of the program that could have quite the opposite effect, as many commentators have pointed out. Probably the single largest concern expressed by many, and shared by us here at BIA, is the timing requirements. The program requires document request responses and productions be completed in less than 100 days. Yes, you read that right – 100 days. And it seems that there are very few exceptions or extensions allowed.
Now, yes, the program does exempt a series of case types that likely would be impossible to complete in such a short time period, such as MDLs, but it doesn’t seem to provide a great deal of flexibility beyond that. And, yes, while many cases are small enough that all discovery work could be doable in such a short time period, there comes a point on the curve where these new rules will increase the costs, decrease the efficiency and lead to general chaos.
And, while the materials and video commentary provided by the FJC acknowledge, in somewhat vague references, that everyone expects discovery would continue past the first 100 days, they couch that post-100 day discovery in terms of “continuing obligations” in discovery that exist today, and not in terms of extending the timelines where necessary.
Now don’t get us wrong here, BIA has always been for efficiency. We’ve built our reputation on designing and implementing eDiscovery tools and workflows that become just another business process – one that is smooth, efficient and affordable. Indeed, one of our Guiding Principles is “Transformative Solutions: We create order from chaos.” So, when given the opportunity to implement an improvement, we’re all over it. But, we’ve also learned that with each new idea often come new questions and unintended consequences.
And that’s our concern here. One of the program’s stated goals – in fact, one of the stated goals of nearly every innovation in and reformation of the eDiscovery industry – is to reduce costs. But at some point, at some case size, the goals of cost controls and shortened time begin to conflict with one another. And it’s that conflict that we believe the program has overlooked, or, at least, not provided for in any way.
In software development, there’s a concept called the “Mythical Man Month.” First introduced by an IBMer many decades ago, in short, it’s the idea that, at some point, putting more people or resources into a development project starts to increase the time required, not decrease it. How could that be? Well, adding more resources in a desperate attempt to hit a deadline can actually cause you to miss that deadline by an even wider margin because you are spending more time ramping up new members and managing an ever-larger team.
Same thing here. You can’t always just add resources to hit a 100-day deadline, regardless of the case size. Let’s take that “Mythical Man Month” theory and apply it to something more fitting to discovery: document review. If you have 600,000 documents to review, and you have reviewers who can review 60 documents an hour, that means that a single person would take 10,000 hours to review all of the documents. Extrapolating that out a bit, and assuming the averages hold, with 10 reviewers, this document review process would take 1,000 hours. 100 reviewers would take 100 hours. 1000 reviewers would take 10 hours. 10,000 reviewers would take an hour, right? Of course not. (And please, no TAR comments – the example here is for illustration purposes).
You see how crazy that gets, but it illustrates the point: at some level, simply committing more resources won’t work, or worse, actually works against meeting the goal. There are going to be cases that simply cannot be done within the 100 days, and a lot more cases where doing so will quickly become economically prohibitive, violating one of the primary goals of the entire program.
There’s another adage that fits here, too: You can’t have something (1) good, (2) fast, and (3) cheap. The best you can hope for is two out of three – such as paying out the nose for quick delivery of a good product or paying below market rates to get a sub-standard product quickly.
In this case, “cheap” isn’t an option, as the law mandates that eDiscovery efforts be “good” (not perfect, but good), and this pilot program has strict rules on “fast.” Here, the seemingly arbitrary 100-day deadline, especially when combined with no real guidance on exactly what that means and without any provision for judges to use their own common sense where appropriate, undoubtedly will have the unintended consequence in larger cases of drastically increasing eDiscovery costs – probably by a significant factor.
But this program can be easily fixed. Judges must be given discretion to adjust schedules to balance the goals of costs vs. time. There simply cannot be a bright-line rule that outright forbids any reasonable consideration. Courts cannot give up the primary goal of discovery being “good,” so the rest has to be balanced between “fast” and “cheap.” It’s critical that everyone understand that the cost to do something escalates as the time to do it shrinks – especially in a period as short as 100 days.
This isn’t the first time that strict and unflinching guidelines have been imposed on courts, tying judge’s hands, preventing them from being the true arbitrators of justice and resulting in not-so-pleasant unintended consequences. Let’s hope that that this oft-repeated lesson is learned once again during this pilot program, and judges are given the discretion to tailor timelines as common sense and cost controls require.