Courts

Federal Judges Feel They're Still Too Involved In Your Discovery Process

Lawyers are getting better at eDiscovery, but there's still a lot of room to improve.

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Federal judges have a pretty important job and they’d really appreciate it if y’all would go ahead and deal with your own petty discovery disputes without having to waste their time. They have a never-ending docket of criminal cases brought on by decades of needless federalization of crime and can do without your dispute over native format spreadsheets.

Even though it’s been years since the legal community first learned its gigabytes from its terabytes, it turns out far too many litigations still get hung up on eDiscovery disputes between the parties that neither side is willing to sit down and address like adults without prevailing upon their judge to weigh in. Whether it’s professional decorum or the malaise that comes with being beaten down by years of these requests, judges tend to humor the litigants. But that doesn’t mean they like it.

Exterro and EDRM/Duke Law collaborated to create this survey of 264 current or recently retired federal judges to learn what they really think about eDiscovery. As you might imagine, their involvement is more extensive than one would hope at this stage in the maturity of eDiscovery as a discipline:

Almost three-quarters of judges have issued some e-discovery instruction in the past year. 13 percent of responding judges have issued an e-discovery sanction, but 74 percent have taken affirmative action (e.g., required additional conferences, issued warnings) to solve e-discovery problems multiple times in the past year. And judges stated that bad faith and poor communication are the leading causes of sanctions.

Come on, people! Can’t we at least get eDiscovery right? While only 13 percent of judges have ended up sanctioning anyone, we’re left to play out in our heads whether that’s a sign of more minor discovery problems or judges who are still too forgiving. If sanctions flow from bad faith and poor communication, how often are attorneys able to pull a fast one on a discovery dispute and say, “Gosh, we didn’t realize that they wanted documents in that format?”

One judge cited in the survey offered an unconventional solution to discovery problems that every judge should adopt immediately:

I have required the parties to have the IT experts from each side to be involved with the meet and confer… They tend to be much better than the lawyers at solving the problems that arise in identifying and retrieving relevant ESI.

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Let the engineers settle it. As the geniuses of Office Space discovered years ago — we just don’t need the intermediary between the engineers and the customers — and, yes, we’re talking about you lawyers out there.

Still, as little as judges want to have to hold the hands of litigants through discovery, they don’t want parties to wait until the process is unsalvageable before inviting some judicial intervention. A mere 22 percent of judges view themselves as active case managers and the rest say they will wait until the parties raise an issue before getting involved.

But there is some good news for judges in the survey. The view from the bench is that 56 percent of judges agree with the statement “lawyers appearing before them have shown an adequate level of knowledge and expertise in eDiscovery matters.” That may not be great, but that stat was a mere 23 percent in 2018.

Progress!

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5th Annual Federal Judges Survey [Exterro]

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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