By Tim Rollins
The third part of our 2018 Federal Judges Survey, “Do the Right Thing” – Judicial Perspectives on the Rules of E-Discovery, we asked federal judges to offer some opinions on the rules that govern e-discovery: the Federal Rules of Civil Procedure (FRCP) and Federal Rules of Evidence.
The judges overwhelmingly agree with the statement, “the new FRCP e-discovery rules have helped solve many problems that occur in e-discovery today.” 73% agreed and only 8% disagreed. But despite the fact that the most recent FRCP amendments are over two years old, the judges feel like attorneys have not adjusted their mindsets—or their practices—to take full advantage of the Rules.
Here are three observations and opinions from federal judges on ways you can improve your e-discovery practices just by making better use of the Rules.
- Take advantage of FRE 502(d).
Despite the Rules’ increased emphasis on cooperation, the judges haven’t seen it. Hon. Xavier Rodriguez US District Judge (W.D. Texas) states, “For the most part, except for minor issues, the emphasis on cooperation has not really achieved the desired results.”
Changes to pre-trial deadlines for Rule 16 hearings and 26(f) meet and confers shouldn’t be seen as a burden. They’re an opportunity to resolve cases sooner, or at least at less expense, through informed exchange of information about discovery issues. Judge Rodriguez continues, in his expert opinion, to explain, "Without doing this preparatory work, meet and confer sessions and Rule 16 hearings will bear very little fruit."
Fully 37.5% of the judges surveyed feel that failure to enter into 502(d) orders rises to the level of malpractice. (And it's not like the "No's" and "Don't Know's" are endorsing As Irth Solutions v. Windstream Communications (S.D. Ohio August 2, 2017) demonstrated, there are limits to the benefits of clawback agreements.
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