Federal Judges Survey Says '

Biggest Issue: A Lack of Education

Shockingly, 0% percent of the responding judges completely agreed that typical attorneys appearing before the court possess the subject matter knowledge required to effectively represent clients on e-discovery matters. According to Judge Facciola, an extraordinary gap exists between what the judges expect versus what the attorneys actually know. “e-Discovery issues have created one of the biggest on-the-job trainings by the American bar that I've witnessed in my career. Expectations vs. reality are very far apart,” he said.

In the webcast, Judge Conti added: “Lawyers of a certain age were not brought up to be proficient with computers and are not comfortable with machines doing what they were trained to do. Younger lawyers coming out of a graduate school with non-technical degrees, like political science, have proficiency using computers but not necessarily how they work (or how a client's system works). It's just not being taught at law school, which is changing, but very slowly.”

Greatest Mistakes: Data Identification And Lack of Communication

A majority of judges in the survey indicated there are significant problems at the front end of the process, with 55% of respondents calling out “identification” as the most problematic area for parties involved in e-discovery disputes. Judge Maas commented that he had not seen this issue called out quite so clearly before. According to the judges, most e-discovery mistakes stem from two common problems: 1) a lack of process; and 2) failures in communication. Judge Conti stated that communication and collaboration go hand in hand. “Too much communication is sent via e-mail. People do not meet in person or talk on the phone. It's so engrained in our culture, that I'm not sure how to change it. It's very frustrating,” she said. Judge Facciola added: “If you're going to talk to the other side, it's to solve a problem. It's not to create exhibit one.”

Most Underutilized Rule: FRE 502(d)

The survey revealed that one very underutilized area for managing costs and dealing with large volumes of data is the Federal Rules of Evidence 502(d) waiver agreement. Parties' reluctance to leverage these agreements is remarkable. The risk and costs associated with inadvertently producing privileged documents is a common source of concern among attorneys. FRE 502(d) enables “a federal court [to] order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court ' in which event the disclosure is also not a waiver in any other federal or state proceeding.” The costs associated with reviewing documents for privilege can be astronomical, especially in large cases, and FRE 502(d) is designed to ease the burden in a way that's beneficial to both parties.

However, the survey revealed that no one is taking advantage of it. Several survey respondents indicated that they've never once seen a party address the rule, an observation that was echoed by Judge Maas: “I've had several cases where the amount of controversy was one billion dollars or greater and even in those cases, counsel have never on their own raised with me a 502(d) order.”

Judge Conti had a different perspective on the issue. Thanks to a default provision, orders in her district routinely have a 502(d) clause included, but she said they don't really result in significant savings. “Lawyers are so concerned about accidentally producing privileged documents, they almost always want a full review prior to production,” she said. “I do not know if it's really going to save money as the profession and clients don't want to use it.”

Largest Misconception: FRCP Rule Changes Will Fix All

According to most judges and e-discovery attorneys, the pending changes to the Federal Rules of Civil Procedure (FRCP) around e-discovery are as good as passed. But when asked if these amendments will change anything, many judges surveyed were skeptical. Judge Facciola pointed out that previous FRCP changes to promote cooperation and increased transparency have had minimal impact. “Deeply engrained in lawyers' ethos is an adversarial way of conducting discovery ' so I am equally skeptical that they will make the kind of changes in lawyers' attitudes that the other rules have not done,” he said. Judge Maas added that many of the potential rule changes seemed largely “cosmetic” in nature and probably won't have much effect on actual discovery practices. However, both he and Judge Conti thought changes to Rule 26 regarding proportionality and limiting the scope of discovery could end up being quite meaningful, especially in large cases, down the road as more case law develops.

What Lies Ahead?

Among the future changes that lie ahead for the legal industry, attorneys, particularly in-house counsel, must prepare for the fact that newer social media and mobile data platforms are subject to discovery, just like e-mail. If the platforms hold relevant evidence, the data must be preserved. Judge Facciola offered a particularly bold assessment of the evolving data landscape. “I think the technology is developing quite rapidly where the text message model will soon overtake the e-mail model,” he said. “I think that might be joined by providers and software manufacturers creating systems that do not collect and keep information.”

Practical Advice

Closing the webcast, the three judges offered one final piece of advice.

Judge Facciola: Get Educated

“We, as an industry, have to appreciate that the subject is vast and the technology seems to be changing every day. Lawyers just have to figure out some way to get the education they need on a post-graduate basis. Education is crucial.”

Judge Maas: Act Early

“Parties should bring disputes or areas of concern to the attention of the court at the earliest possible date, most likely at the pre-trial conference. Don't wait until a “death” has actually occurred. We can resolve the issues more efficiently [and cheaply] if they are brought to the court's attention sooner.”

Judge Conti: Leverage the Experts

“Make sure you have somebody who understands both the technology and issues around e-discovery. If you aren't e-discovery competent, find someone who is.”

Bob Rohlf serves as e-discovery counsel for Exterro. He has extensive experience in law and business. Prior to his role at Exterro, Bob managed business process improvements projects in a number of national and regional companies. He also has experience with general business and patent litigation.

Twenty years ago, few lawyers would have thought the notion of legal competency would come to include understanding and advising on technical issues surrounding the discovery of electronic information. In today's digital age, however, lawyers must be both legally and technically savvy to competently represent their clients. While this might sound like common sense, the reality playing out in today's courtrooms is that many lawyers are struggling to adequately advise their clients on e-discovery issues.

This reality was highlighted in a new survey published by Exterro in February, “Federal Judges Survey: E-Discovery Best Practices and Trends.” In the survey, we collected responses from 22 of the most influential and well-versed federal judges on e-discovery issues. The results and associated comments provide a stark view into the judiciary's views on e-discovery competency, e-discovery trends to be aware of in the future and the need for attorneys to improve their e-discovery acumen.

We had the distinct pleasure of having three of the participating judges, Chief District Judge Joy Conti (W.D. Penn), Chief Magistrate Judge Frank Maas (S.D.N.Y.) and recently retired Magistrate Judge John Facciola (D.D.C.), provide their perspectives on a recent Exterro webcast, “Federal Judges Panel: Avoiding 'Irreversible Mistakes' in E-Discovery.” Their comments and perspectives served to spotlight many of the issues addressed in the survey. This article highlights some of the findings.

Biggest Issue: A Lack of Education

Shockingly, 0% percent of the responding judges completely agreed that typical attorneys appearing before the court possess the subject matter knowledge required to effectively represent clients on e-discovery matters. According to Judge Facciola, an extraordinary gap exists between what the judges expect versus what the attorneys actually know. “e-Discovery issues have created one of the biggest on-the-job trainings by the American bar that I've witnessed in my career. Expectations vs. reality are very far apart,” he said.

In the webcast, Judge Conti added: “Lawyers of a certain age were not brought up to be proficient with computers and are not comfortable with machines doing what they were trained to do. Younger lawyers coming out of a graduate school with non-technical degrees, like political science, have proficiency using computers but not necessarily how they work (or how a client's system works). It's just not being taught at law school, which is changing, but very slowly.”

Greatest Mistakes: Data Identification And Lack of Communication

A majority of judges in the survey indicated there are significant problems at the front end of the process, with 55% of respondents calling out “identification” as the most problematic area for parties involved in e-discovery disputes. Judge Maas commented that he had not seen this issue called out quite so clearly before. According to the judges, most e-discovery mistakes stem from two common problems: 1) a lack of process; and 2) failures in communication. Judge Conti stated that communication and collaboration go hand in hand. “Too much communication is sent via e-mail. People do not meet in person or talk on the phone. It's so engrained in our culture, that I'm not sure how to change it. It's very frustrating,” she said. Judge Facciola added: “If you're going to talk to the other side, it's to solve a problem. It's not to create exhibit one.”

Most Underutilized Rule: FRE 502(d)

The survey revealed that one very underutilized area for managing costs and dealing with large volumes of data is the Federal Rules of Evidence 502(d) waiver agreement. Parties' reluctance to leverage these agreements is remarkable. The risk and costs associated with inadvertently producing privileged documents is a common source of concern among attorneys. FRE 502(d) enables “a federal court [to] order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court ' in which event the disclosure is also not a waiver in any other federal or state proceeding.” The costs associated with reviewing documents for privilege can be astronomical, especially in large cases, and FRE 502(d) is designed to ease the burden in a way that's beneficial to both parties.

However, the survey revealed that no one is taking advantage of it. Several survey respondents indicated that they've never once seen a party address the rule, an observation that was echoed by Judge Maas: “I've had several cases where the amount of controversy was one billion dollars or greater and even in those cases, counsel have never on their own raised with me a 502(d) order.”

Judge Conti had a different perspective on the issue. Thanks to a default provision, orders in her district routinely have a 502(d) clause included, but she said they don't really result in significant savings. “Lawyers are so concerned about accidentally producing privileged documents, they almost always want a full review prior to production,” she said. “I do not know if it's really going to save money as the profession and clients don't want to use it.”

Largest Misconception: FRCP Rule Changes Will Fix All

According to most judges and e-discovery attorneys, the pending changes to the Federal Rules of Civil Procedure (FRCP) around e-discovery are as good as passed. But when asked if these amendments will change anything, many judges surveyed were skeptical. Judge Facciola pointed out that previous FRCP changes to promote cooperation and increased transparency have had minimal impact. “Deeply engrained in lawyers' ethos is an adversarial way of conducting discovery ' so I am equally skeptical that they will make the kind of changes in lawyers' attitudes that the other rules have not done,” he said. Judge Maas added that many of the potential rule changes seemed largely “cosmetic” in nature and probably won't have much effect on actual discovery practices. However, both he and Judge Conti thought changes to Rule 26 regarding proportionality and limiting the scope of discovery could end up being quite meaningful, especially in large cases, down the road as more case law develops.

What Lies Ahead?

Among the future changes that lie ahead for the legal industry, attorneys, particularly in-house counsel, must prepare for the fact that newer social media and mobile data platforms are subject to discovery, just like e-mail. If the platforms hold relevant evidence, the data must be preserved. Judge Facciola offered a particularly bold assessment of the evolving data landscape. “I think the technology is developing quite rapidly where the text message model will soon overtake the e-mail model,” he said. “I think that might be joined by providers and software manufacturers creating systems that do not collect and keep information.”

Practical Advice

Closing the webcast, the three judges offered one final piece of advice.

Judge Facciola: Get Educated

“We, as an industry, have to appreciate that the subject is vast and the technology seems to be changing every day. Lawyers just have to figure out some way to get the education they need on a post-graduate basis. Education is crucial.”

Judge Maas: Act Early

“Parties should bring disputes or areas of concern to the attention of the court at the earliest possible date, most likely at the pre-trial conference. Don't wait until a “death” has actually occurred. We can resolve the issues more efficiently [and cheaply] if they are brought to the court's attention sooner.”

Judge Conti: Leverage the Experts

“Make sure you have somebody who understands both the technology and issues around e-discovery. If you aren't e-discovery competent, find someone who is.”

Bob Rohlf serves as e-discovery counsel for Exterro. He has extensive experience in law and business. Prior to his role at Exterro, Bob managed business process improvements projects in a number of national and regional companies. He also has experience with general business and patent litigation.