Shook, Hardy & Bacon Data and Discovery Strategies Partner Patrick Oot has authored a New York Law Journal article titled "Lawyers Guide to a Lean Justice System and Proportional Discovery," which examines how attorneys can apply the Lean Six Sigma methodology to analyze new proportionality requirements under Rule 26(b)(1) of the Federal Rules of Civil Procedure (FRCP).
According to Oot, the 2015 FRCP amendments place a new emphasis on proportionality, with Rule 26(b) "now at the forefront as part of the very definition of permissible discovery in order to combat skewed discovery with high costs and burdens." Describing Lean Six Sigma as an improvement methodology designed "to reduce errors, waste and variations, and increase quality and efficiency," the article analyzes how legal practitioners can use Lean Six Sigma's methodology of Defining, Measuring, Analyzing, Improving and Controlling (DMAIC) when defining "how discovery is proportional to the needs of the case." Oot notes, for example, that parties using lean preparations to undertake a proportionality factor analysis might seek to determine: (i) "the importance of the issues at stake in the action"; (ii) "the amount in controversy"; (iii) "the parties' relative access to relevant information"; (iv) "the parties' resources"; (v) "the importance of the discovery in resolving the issues"; and (vi) "whether the burden or expense of the proposed discovery outweighs its likely benefit."
Lean Six Sigma defines critical success factors to include engagement, management involvement, communications, resources, projects, discipline and consequences...Lean Six Sigma, applied to the U.S. civil justice system, might but seem strange at first, but the concept is right at “home” when discussing discovery. Applying Lean Six Sigma to discovery can assist in improving the primary review of documents and reduce overall costs, as the philosophy forces practitioners and courts to look at the bigger picture and ask—why is this discovery task done this way (or at all)?