Recommind continues its series of short blog posts in the form of interviews with players and influencers in eDiscovery on its Mind Over Matters blog.

The most recent, by Recommind’s Philip Favro, is an interview with Judge Derek Pullan who led the recent initiatives in Utah which sought to elevate proportionality to its proper place in civil procedure.

Called Q&A with Proportionality Expert Judge Derek Pullan, it appears as a recital of plain common sense. Judge Pullan says:

In the end, proportionality limitations have been unable to counterbalance the existing broad language defining the scope of permitted discovery.

The solution, he suggests, lies in judicial involvement: he says

Judges need to be willing to engage with counsel about discovery issues earlier in the case and with greater frequency. Judicial involvement is a key component to making proportionality standards meaningful. This investment of time up front is a stark change for many judges who have long felt that cases would manage themselves.

In theory at least, proportionality is even more of an express obligation within the UK civil procedure rules than it is in the US (not that many US lawyers seem to know that proportionality is required by the rules). What is required of judges is not merely that they roll their sleeves up and get involved, but that they should have some understanding of how a combination of rules, judicial activity and technology can be used to control the scope and expense of eDiscovery.

American lawyers like bright lines and to know exactly where they stand. The nature of proportionality is that it shifts with the context, and that is hard even for English lawyers with their greater willingness to accept the uncertainties of judicial discretion.

The real problem lies in the formula “I am being proportionate, you are not competent to give discovery properly and he is deliberately concealing documents”. Proportionality and its concomitant reduction of wasted time and cost is far off until judges are willing and able to arbitrate on an informed basis.