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Relativity Fest: Judges Face Nebulous Zone In Managing Discovery

Robe up! We're entering treacherous waters.

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Judges are often overlooked when it comes to eDiscovery. It’s the attorneys and clients who spend months parsing through terabytes of data and sending nasty letters to each other about the overly broad privilege log. But the judges are still there getting dragged into every protracted dispute, usually trying to untangle weeks worth of petty back and forth to come to an outcome that’s both legal and expeditious.

Unfortunately there aren’t always useful signposts in this territory and how judges deal with these disputes leaves a lot of room for unshackled creativity.

Relativity Fest kicked off the morning with its 8th annual Judicial Panel to discuss these and other issues. The panel was moderated by David Horrigan, and included Senior Judge Nora Barry Fischer of the Western District of Pennsylvania; Justice Tanya R. Kennedy, Appellate Division 1st Dep’t, NY Supreme Court; Magistrate Judge William Matthewman of the Southern District of Florida; Judge Victoria McCloud Master of the Senior Courts Queen’s Bench Edition; and Judge Xavier Rodriguez of the Western District of Texas.

How does a judge deal with warring parties? Magistrate Matthewman made an evocative reference. “I agree there should be no babysitting and I agree there should be no hands off provision. It’s almost like Goldilocks and the Three Bears, you want to have the porridge just right.” Judges simply don’t have the time to hold the hands of every party on the docket, but they also can’t completely walk away without turning over the process to high-priced lunatics.

When dealing with that porridge service, the broad latitude afforded judges can go into some fun directions. In Avista Management, Judge Presnell ordered that “counsel shall engage in one (1) game of “rock, paper, scissors,” to determine the details of a 30(b)(6) deposition. It may not be the most lawyerly solution, but it does have the benefit of communicating to the parties the waning patience judges have for frivolous disputes. Maybe this can shock the parties into coming together.

Another trick, pioneered by former Magistrate David Waxse from the District of Kansas, involved bringing the panopticon to bear on discovery conferences, demanding that they be videotaped for his review — a threat he almost certainly never intended to follow through upon. But it did tend to produce cooperation where trading nastygrams didn’t.

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But if a judge is ready to get medieval on botched discovery, there’s always “the nuclear option.” Just go ahead and throw the whole case out based on the discovery abuses. It’s harsh and rare, but it’s available for egregious acts. Judge Fischer cautioned though that “when you impose a sanction, particularly a dismissal, there’s the attorney’s reputation at stake, the law firm’s reputation at stake, the rights of the client, and potentially there’s a malpractice case.”

However judges choose to navigate the treacherous waters of discovery, it’s worth checking back in with Judge Matthewman who said discovery disputes are, “Almost like a cut on your finger…. If you let it go and you don’t treat it, it becomes infected and you have to go to the hospital.”

This guy has all the analogies, doesn’t he?

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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