Extract from Ralph Losey’s article “Judge Facciola’s Successor, Judge Michael Harvey, Provides Excellent Proportionality Analysis in an Order to Compel”
U.S. Magistrate Judge G. Michael Harvey is the court successor to the position held by e-discovery famous Magistrate Judge John Facciola (shown here). Judge Harvey’s latest Order on e-Discovery is his best so far. Oxbow Carbon & Minerals LLC v. Union Pacific Railroad Company, No. 11-cv-1049 (PLF/GMH), 2017 WL 4011136, (D.D.C. Sept. 11, 2017).
Oxbow contains an especially good analysis and discussion of the six proportionality factors in revised Rule 26(b)(1), FRCP. It also contains useful metrics on cost that establish a new comparative benchmark for simple email discovery. It is a must-read in the growing list of cases on proportionality and document review.
Background on the Koch Antitrust Case
Oxbow is a very large antitrust case brought by five related companies that mine and sell coal and petroleum coke. The suit is against the Union Pacific and BNSF Railway Company. The complaint alleges a conspiracy by the railroads to fix the prices of shipping coal. Over $1.5 Billion in damages are sought, including treble damages under the Sherman Antitrust Act.