Hive Mind e-Discovery Proportionality Game

The33-point checklist item language in this game by Ralph Loseywas created and isused by the U.S. Dist. Court of Fl., S. Dist., as a guide for Rule 26(f) Conferences and Reports.

The purpose of this game is to refine (and test) your skills in Proportionality analysis by classifying each of the items as either SMALL, MEDIUM or LARGE. All thirty-three of the checklist items are appropriate for Large cases, but many of the items are not appropriate for Small cases, they are not even appropriate for Medium size cases. The Game is to determine if an item is proportionally appropriate for Small cases, or for Medium cases. Note if an item is appropriate for Medium sized cases, then it is automatically also appropriate for Small size cases. You need to pick one, and only one, of the three Answers for all thirty-three.

To illustrate how the game works we share the Answer for the first item. It is appropriate for Small Cases (meaning all size cases, including medium and large) and so the Small box is checked. Go through the remaining 32 items and give your best, educated guess as to the proportionality value of each by checking on of the three boxes. Remember, all of them are appropriate for Large Cases, so if you think a particular task among the remaining thirty-two is too burdensome for Small and Medium size cases, then you would check Large. If you think a task is too burdensome for Small cases, but not Medium sized, then check the Medium box. If you think a task should be done in all cases, then check Small. Got it? Still have questions, email your group leader, game-master at .

Like all good games, there will be winners and losers. Your game-master will let you know your score and publicize the top scores only. Start by putting in your name: .

Preservation

  1. The ranges of creation or receipt dates for any ESI to be preserved.

SMALL MEDIUM LARGE

  1. The description of ESI from sources that are not reasonably accessible because of undue burden or cost and that will not be reviewed for responsiveness or produced, but that will be preserved in accordance with Federal Rule of Civil Procedure 26(b)(2)(B).

SMALL MEDIUM LARGE

  1. The description of ESI from sources that: (a) the party believes could contain relevant

information; but (b) has determined, under the proportionality factors, is not discoverable and should not be preserved.

SMALL MEDIUM LARGE

  1. Whether to continue any interdiction of any document-destruction program, such asongoing erasures of e-mails, voicemails, and other electronically recorded material.

SMALL MEDIUM LARGE

  1. The number and names or general job titles or descriptions of custodians for whom ESI will be preserved (e.g., “HR head,” “scientist,” “marketing manager”).

SMALL MEDIUM LARGE

  1. The list of systems, if any, that contain ESI not associated with individual custodians and that will be preserved, such as enterprise databases.

SMALL MEDIUM LARGE

  1. Any disputes related to scope or manner of preservation.

SMALL MEDIUM LARGE

Liaison

  1. The identity of each party’s e-discovery liaison, who will be knowledgeable about and responsible for each party’s ESI.

SMALL MEDIUM LARGE

Informal Discovery About Location and Types of Systems

  1. Identification of systems from which discovery will be prioritized (e.g., e-mail, finance,HR systems).

SMALL MEDIUM LARGE

  1. Descriptions and location of systems in which potentially discoverable information is

Stored.

SMALL MEDIUM LARGE

  1. How potentially discoverable information is stored.

SMALL MEDIUM LARGE

  1. How discoverable information can be collected from systems and media in which it is

stored.

SMALL MEDIUM LARGE

Proportionality and Costs

  1. The amount and nature of the claims being made by either party.

SMALL MEDIUM LARGE

  1. The nature and scope of burdens associated with the proposed preservation and discovery of ESI.

SMALL MEDIUM LARGE

  1. The likely benefit of the proposed discovery.

SMALL MEDIUM LARGE

  1. Costs that the parties will share to reduce overall discovery expenses, such as the use of a common electronic-discovery vendor or a shared document repository, or other costsaving measures.

SMALL MEDIUM LARGE

  1. Limits on the scope of preservation or other cost-saving measures.

SMALL MEDIUM LARGE

  1. Whether there is relevant ESI that will not be preserved in accordance with Federal Rule of Civil Procedure 26(b)(1), requiring discovery to be proportionate to the needs of the case.

SMALL MEDIUM LARGE

Search

  1. The search method(s), including specific words or phrases or other methodology, thatwill be used to identify discoverable ESI and filter out ESI that is not subject todiscovery.

SMALL MEDIUM LARGE

  1. The quality-control method(s) the producing party will use to evaluate whether a

production is missing relevant ESI or contains substantial amounts of irrelevant ESI.

SMALL MEDIUM LARGE

Phasing

  1. Whether it is appropriate to conduct discovery of ESI in phases.

SMALL MEDIUM LARGE

  1. Sources of ESI most likely to contain discoverable information and that will be included

in the first phases of Federal Rule of Civil Procedure 34 document discovery.

SMALL MEDIUM LARGE

  1. Sources of ESI less likely to contain discoverable information from which discovery will

be postponed or not reviewed.

SMALL MEDIUM LARGE

  1. Custodians (by name or role) most likely to have discoverable information and whose

ESI will be included in the first phases of document discovery.

SMALL MEDIUM LARGE

  1. Custodians (by name or role) less likely to have discoverable information from whom

discovery of ESI will be postponed or avoided.

SMALL MEDIUM LARGE

  1. The time period during which discoverable information was most likely to have been

created or received.

SMALL MEDIUM LARGE

Production

  1. The formats in which structured ESI (database, collaboration sites, etc.) will be produced.

SMALL MEDIUM LARGE

  1. The formats in which unstructured ESI (e-mail, presentations, word processing, etc.) willbe produced.

SMALL MEDIUM LARGE

  1. The extent, if any, to which metadata will be produced and the fields of metadata to beproduced.

SMALL MEDIUM LARGE

  1. The production format(s) that ensure(s) that any inherent searchability of ESI is notdegraded when produced.

SMALL MEDIUM LARGE

Privilege

  1. How any production of privileged or work-product protected information will be handled.

SMALL MEDIUM LARGE

  1. Whether the parties can agree on alternative ways to identify documents withheld on the grounds of privilege or work product to reduce the burdens of such identification.

SMALL MEDIUM LARGE

  1. Whether the parties will enter into a Federal Rule of Evidence 502(d) stipulation and

order that addresses inadvertent or agreed production.

SMALL MEDIUM LARGE

CONGRATULATIONS!

You have completed the Hive Mind e-Discovery Proportionality Game.Email this to your hive-group leader and bring a print-out to the meeting where the hive-mind assimilation part will play out. Hint – you’ll have a chance to change your answer after you hear the results, but before the “right” answer is shared. That’s where the Hive part comes in.

Game-masters, please share the final results with the game-originator, .

For more information on the 33-point checklist and the game see Losey’s blogs on the subject at: Play the New e-Discovery “Hive Mind” Game: Small, Medium orLarge?(e-discoveryteam.com, 11/19/17), and Good New 33-Point e-Discovery Checklist From Miami (e-discoveryteam.com, 10/1/17) (includes commentary of each of the checklist items).

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