This is a guest blog post from Georgetown Law's Molly Scott. Molly is the Senior Director of CLE Programming for the Department of Executive and Continuing Legal Education at Georgetown Law.
A few decades ago, few lawyers would have thought that the idea of legal competency would come to include understanding and advising on technical issues surrounding the discovery of electronic information. But over the last 15 years, technological savvy has become a requirement for lawyers to truly serve their clients competently. That means understanding things like the implications of collecting data in a specific way, or the legal ramifications of preserving electronically stored information (ESI) on certain data sources.
For the most part, we in the legal profession have done a good job of catching up and evolving to meet the demands of the changing times. One of the ways this shows is through surveys of the federal judiciary; according to Exterro’s annual Judge’s Survey data from 2018 to 2019 (when more than 260 federal judges were surveyed), judicial perception of attorney e-discovery competence jumped from 23% to 56%. So what does that change in perception uncover—and where do judges see the potential for improvement among attorneys with their e-discovery practices?
We combed through five years of Exterro’s Judge’s Survey and analyzed their commentary to put together five insights that might help attorneys look at e-discovery a little differently and understand where their gaps are—and what the judges are usually focusing on in these cases.
#1: Preservation is still a problem in e-discovery
A significant number of judges point out that the area in which counsel needs the greatest improvement relates to the preservation stage. The most common mistakes occur at the “front end” of the Electronic Discovery Reference Model, where data that should have been preserved is often spoliated, which in some cases may lead to sanctions and other fines. Judge Xavier Rodriguez, U.S. district judge from western Texas, says that the lack of upfront communication between parties is lacking.
“I think a lot of us are still in the mindset of pre-2006 days, ‘Well, I don’t have to do anything, so I’m not going to do anything,’ and that’s not going to help us in determining preservation obligations and proactively resolve later disputes about what’s kept, what’s needed, [and] how production is going to take place,” said Rodriguez.
So in terms of communicating to create preservation rules, “the sooner, the better,” is the advice of Judge Rodriguez.
#2: Attorney expertise in e-discovery is increasing
As we pointed out a bit earlier, even though the gap between those with more e-discovery knowledge and those with less e-discovery knowledge is closing, the gap still exists.
“When I went on the bench 15 years ago, it was fairly common for lawyers to confess that they really had no clue in this area and I just don't see that anymore,” said Frank Moss, chief magistrate judge of the Southern District of New York during an Exterro Judge’s Panel webcast reviewing one of the survey reports. “Also, the number of lawyers who have a considerable skillset in this area clearly, it seems to me, is increasing.”
This is great news, but Moss acknowledges the reality is that more continuing education will help many:
“But there clearly are a lot of folks who are in the middle between those two groups. They're well-meaning, they tried to do the right thing in this area, but they're in need of further in-service education."
#3: Many mistakes are made in the identification stage
If preservation is the worst-offending stage in terms of e-discovery mistakes, identification is often a close second. Judge John Facciola, a former magistrate judge in the District of Columbia, explains that identification is so problematic because attorneys are often “imprisoned by their own clients’ recordkeeping systems”:
“If [attorneys] have a client who has given some thought to information governance [and] how to do it efficiently and in a cost-wise fashion may be relatively easy,” said Judge Facciola. “It’s startling, but information governance among American corporations is not a high priority, and surveys show that it’s not anywhere near what it should be given the massive amounts of data that people are collecting. So I could see why lawyers with perfect justification feel overwhelmed by client systems that have come into existence without any thought.”
Bad data management on the part of the client is an uncontrollable problem for attorneys, but they should ensure that the issue isn’t derived from a lack of identifying key custodians and date ranges for collection early enough. In that case, the mistake could end up being that there’s a failure to preserve something that should have been preserved.
#4: Data growth is increasing costs and challenges in e-discovery
The typical amount of ESI involved in legal matters has grown substantially over the past decade. This presents a number of problems for a number of reasons, including proportionality: More data owned by enterprises and organizations means more data to collect and review, which can lead to vast cost increases throughout the entire process. Judge Joy Conti, chief district judge of western Pennsylvania, feels that the growth in data means that attorneys must understand how to utilize technology to help them save time and money in their e-discovery efforts.
“You have to have technological competence if you’re going to practice law,” said Conti. “[Technology use] is so prevalent, it is so large in many cases that if you do not have that competence, you are not going to be able to practice law. I think [technology knowledge] has a big impact on how the courts view competency and how a lawyer should view competency to practice law.”
#5: Privileged waiver agreements are an easy way to reduce e-discovery costs
When surveyed, the judges thought the best, and perhaps one of the easiest, ways to reduce the cost of e-discovery was by leveraging FRE 502(d) privileged waiver agreements. We know from years of research that review is the most expensive stage of e-discovery, encompassing more than 70% of the costs by many measures. The privileged waiver agreement is meant to help parties preclude inadvertent disclosure of information from review, meaning that one party can ask the other to return the information with the agreement that the disclosure was inadvertent and therefore waived. About half of judges believe the 502(d) waiver results in big savings and is underutilized.
According to Judge Conti: “Look at rule 502, Rules of Evidence, and what you want is not just an agreement, which binds the parties under subsection E. You want the court to order it because that will bind everybody, including the state court, which is why it’s such a powerful tool.”
During large cases especially, in which there are inevitable mistakes regarding document production and disclosure of privileged documents, the 502(d) can make some of those mistakes hurt less.