<i>Legal Tech:</i> Four Lessons Learned from Exterro's 4th Annual Federal Judges Survey

For the fourth time, Exterro has conducted an in-depth survey of federal judges in order to understand better how they see e-discovery law and practice changing. In 2018, partnering with EDRM at Duke Law and BDO, this survey reached farther and deeper than ever before, with 30 federal judges responding to questions covering e-discovery competency, improvements to e-discovery practice, and the Federal Rules of Civil Procedure and Federal Rules of Evidence that govern e-discovery.

Past surveys of the federal judiciary have compared the judges' responses to those of attorneys or invited e-discovery experts to offer their thoughts on what the results meant. This year, in addition to gathering and analyzing the opinions of 30 federal judges, the survey contains expert analysis of the results from eight sitting and recently retired federal judges.

Reviewing the survey data and the judges' analysis, four key themes emerged.

1. While their skills are improving, attorneys still lag behind judges and the law in e-discovery skills.
2. While e-discovery education is needed, a change in mindset to more cooperation would yield even bigger improvements.
3. The keys to improvement are: 1) e-discovery education; and 2) improved understanding and use of the Rules.
4. Judges embrace technology's role in e-discovery, especially in ensuring processes are defensible.

Attorney E-discovery Skills Insufficient

Data

The survey asked judges to agree or disagree with the statement, “The typical attorney possesses the legal and technical subject matter knowledge required to effectively counsel clients on e-discovery matters.”

• 47% disagreed.
• 30% were neutral.
• 23% agreed.

Analysis

Two years on from the latest FRCP amendments, and almost 15 years into the e-discovery era of the courts, the federal bench sees incremental, rather than dramatic, progress in attorneys' e-discovery skills. While more competent in legal and technical issues, their skill levels still differ substantially.

According to Hon. John Facciola, US Magistrate Judge, District of Columbia (Ret.): “How do these lawyers expect to survive, let alone prosper, when they do not understand the implications for litigation of how their clients create, transmit and keep the information that is the very life blood of a lawsuit?”

Cooperation Still Poor

Data

Asked to identify the causes of e-discovery mistakes, judges overwhelmingly blamed attorneys' lack of cooperation, with insufficient e-discovery education and the lack of defensible policies tied for a distant second place.

• 60% poor cooperation.
• 10% lack of defensible policies.
• 10% lack of e-discovery education.
• 3% unequal e-discovery skills between parties.
• 17% other.

Analysis

Judges have adopted more active case-management strategies, doing what they can to ensure cooperation, to reduce gamesmanship, and to expedite “just, speedy, and inexpensive” resolutions. Greater cooperation, especially early in e-discovery; increased preparation, particularly around their clients' e-discovery practices; and the continuing embrace of proportionality can all yield significant returns in improving e-discovery outcomes.

Hon. Xavier Rodriguez, Federal Judge, Western District of Texas stated: “Cooperation requires preparation and an understanding of the case prior to reaching agreements about the scope of discovery, preservation obligations, and form of production.”

More Education Needed

Data

Asked to identify ways to improve e-discovery practices, judges recommended education as the top means to do so. Almost three quarters recommended continuing legal education, followed by academic research, case law resources, and technical training.

• 73% continuing legal education courses.
• 23% academic research.
• 23% case law and the Rules.
• 20% technical learning.
• 10% law school requirements.

Analysis

Judges embrace proactive strategies to create this change. In a follow-up question asking judges to identify the best way to get the legal community to take e-discovery more seriously, just under half chose mandatory e-discovery education. (33% chose CLEs and another 13% chose law school requirements.) None of the surveyed judges recommended issuing more sanctions.

It was the belief of Michelle Childs, United States District Judge, District of South Carolina that “Consistent training of lawyers and judges on e-discovery developments is necessary to stay abreast of the ever-evolving technology and to ensure the practical and efficient management of litigation.”

Embrace the Rules

Data

When asked to agree or disagree with the statement, “The new FRCP e-discovery rules have helped solve many problems that currently occur in e-discovery today,” the surveyed judges overwhelmingly agreed. More than 73% somewhat or strongly agreed with that idea. Only 8% disagreed, and 19% were neutral.

Analysis

Judges use the Rules to prod antagonistic parties toward cooperation and to achieve equitable outcomes. Counsel should make similar use of the Rules, but, in the judges' eyes, do not yet do so, with a lack of familiarity with the amendments or the insistence upon an adversarial outlook being the likely causes.

Judge Rodriguez summed it up best: “The 2016 amendments contemplated a 'front end' system, where counsel conducted meaningful analysis of the case as early as possible, held meet and confer sessions with opposition, and then presented issues they had been spotted to the judge at the Rule 16 hearing. This is not occurring.”

Technology Helps Ensure Defensibility

Data

When asked to identify elements of a “reasonable process” to preserve electronically stored information, the judges listed many tasks automated by e-discovery software platforms.

• 67% Record all activities in the preservation process.
• 63% Send out a legal hold.
• 44% Collect data from key custodians.
• 41% Showcase that a defined, repeatable preservation process was used.

Analysis

One aspect of e-discovery where technology can play a role is in ensuring that parties with a reasonable expectation of litigation are using a “reasonable process” to preserve information. Tracking legal holds — along with e-discovery activities later in the EDRM such as document review — can be accomplished with software, reducing both risk and expense.

According to Judge Rodriguez: “Although every now and then there is a dispute regarding when the duty to preserve was triggered, that has not been the focus of most recent cases …. The amount of relevant information preserved has now become the central inquiry.”

Call to Action for Attorneys

The amended FRCP has refocused judges' attention on achieving desirable outcomes as much as enforcing the Rules. At this time, they are waiting — and hoping — for attorneys to make a similar change of mindset.

If you'd like to review the complete 4^th Annual Federal Judges Survey, download it from Exterro's website.

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Mike Hamilton is the Director of E-Discovery Programs at Exterro. With a legal and business background, Mike is experienced and passionate about creating thoughtful, out-of-the-box educational resources that help keep legal teams interested and on top of emerging need to know e-discovery issues.