By Tim Rollins
In a recent webcast (which you can hear a full replay of here), three federal judges participated in a spirited discussion about the findings of Exterro’s and EDRM’s 2019 Federal Judges Survey, in which 264 federal judges shared their opinions on a variety of topics ranging from sanctions to cooperation, and attorney competence to effective communication.
You might think that a conversation with three federal judges about what other judges think about e-discovery might end up heavy on the case law and legal theory… but in this case, you’d be wrong. In their wide-ranging conversation, Hon. Joy Conti (Chief District Judge, W.D. Penn.), Hon. Elizabeth Deavers (Chief Magistrate Judge, S.D. Ohio), and Hon. Xavier Rodriguez (District Judge, W.D. Tex.) shared very practical thoughts and advice for attorneys (and other professionals) working in e-discovery. Here are some of the highlights.
- Make sure you understand your clients’ IT infrastructure. After all, how can you have a meaningful conversation with opposing counsel about what documents you’ll be able to produce if you don’t know what’s there in the first place?
- Tell your judge if you expect e-discovery to be substantial. “We require the parties to tell us whether e-discovery is going to be a significant component in the case, and if so, whether they need a detailed e-discovery plan or proposal to be reviewed and approved by the court,” explained Judge Conti. It’s especially valuable in large, high-dollar-value cases to make sure everyone is on the same page.
- Cooperate and push forward e-discovery on your own. Even judges who are informed on e-discovery issues are likely to be cautious. As Judge Rodriguez mentioned, “We’re naturally cautious about interjecting ourselves into a case unnecessarily… Parties have got to do this [e-discovery] cooperatively and resolve things themselves.”
- Communicate effectively and behave professionally with opposing counsel. “Poor communication will probably not get you the most serious sanctions,” said Judge Conti, “More judges are looking at the professional conduct of the parties, trying to hold them accountable for inappropriate conduct. And if it requires shifting of costs or some other form of action, then judges are more willing to do that today.”
- Comply with Rule 26(g)(3). Judge Deavers was not surprised to learn that most judges felt that portion of the FRCP was most neglected by legal teams. She recalls, “I’m constantly struggling with attorneys on these matters with respect to their obligation to correct incomplete disclosures or to supplement their discovery responses.”
- Bring e-discovery problems to the judge’s attention. Judge Deavers continued, “If we understand or get information that there is an issue, immediately bring it to the attention of the presiding judge. Get the presiding judge on the phone and have a discussion about it before it gets to the point that you need to file a motion.”
- Pay attention to email and text messages. Though they’re common data sources, and one would expect attorneys to know to preserve them, they’re still most frequently spoliated according to the results of the survey. This comports with what Judge Conti sees. “I don’t know if it’s because lawyers are not appropriately looking for it or preserving it, but the most active issues that I have are with email and text messages.”
- Don’t ignore mobile phone data. Judge Rodriguez elaborates, “Some phones are going to be necessary. That’s where the evidence is nowadays—and email is quickly being displaced by text messaging in a lot of cases… Especially state court judges know this through family law disputes, all the evidence is on the phone.”
- Ask for phone data early. Judge Conti advises, “If you know that text messaging is significant to a case, ask for it early, because many cloud providers do retain those deleted messages… But you need to act promptly because eventually in the cloud too, it’ll go to a backup device.”
- Be especially proactive if you’re a plaintiff. Judge Rodriguez explains, “If you’re going to be the plaintiff, you know when you’re going to trigger litigation, so you ought to start figuring out early on who’s go what, when, and where.” There’s no good excuse for not preserving data if you’re initiating the matter.