Is Proportionality All Askew?

Craig Ball had a fascinating post this week on why ED costs so much. Entitled  Are We Paying Five Times Too Much for E-discovery? , the gist of the article is that proponents of proportionality analysis, as Craig puts it, ” ….make no provision for distortion of cost attributable to incompetence and disorganization.  They simply accept the unacceptable and make it their baseline. ”

Hear, hear.  I’ve been saying it for well over a year now. Judge Facciola said it at Legal Tech New York. Two years ago. And Craig hammers home the point again. 

The problem isn’t the new rules or the enormous amounts of data or the increased technical difficulties.  The problem is what we used call, back when I was a network administrator, a “loose nut on the keyboard”.

Craig is more eloquent when he says “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.”  

What is the solution? Well as I said here several weeks ago, read the rule book shankapotomous.  Once again Craig is more eloquent when he ventures  “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.”
And so we return to a recurrent theme among ED commentators. We need not just better but far more education.  That is the best way to reduce ED costs.

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