By Tim Rollins
This article reviews some of the valuable conclusions drawn by e-discovery pioneer George Socha in his recent article Exterro and Duke/EDRM Judges Survey 2019 Series: Part 1, Failure to Comply with Federal Rules. If you find this summary valuable, make sure to check out the article on ACEDS' blog!
In February, Exterro and EDRM released the results of our 5th annual survey of the federal judiciary. (You can download the full report here, if you haven't seen it already.) Compared to past years, this year's report contained a treasure trove of data, as approximately 8 times as many judges responded to the 2019 survey as to the 2018 edition. We looked at the data in aggregate and came away with some key takeaways that we think are valuable, as they look at trends over several, related questions to remind attorneys to be proactive about e-discovery, understand their clients' IT infrastructure, cooperate with opposing counsel, and more.
But our report, at 15 pages including a review of aggregated responses to all 20 questions, doesn't have the space or time to go truly deep on the data--over 250 sets of responses and comments from magistrate and district judge. Fortunately, EDRM co-founder and current Managing Director at BDO George Socha has started a series of articles on ACEDS' blog that will do just that: go truly deep on the data. Clocking in over 1500 words, the article sets the stage for what is certain to be an interesting series, with analysis of the survey demographics and the first question, in which judges were asked, "In your opinion, which e-discovery rules do attorneys neglect to comply with most often?"
But rather than dive into meta-analysis in this post, I'd like to highlight what I found most valuable about the post--the practical recommendations." Considering the quantitative and qualitative responses from the judges, the language of the related sections of the FRCP, and his decades of experience in e-discovery, George Socha suggests six things under the header, "What should attorneys do?
- Read and thoroughly understand the 2015 FRCP amendments. This is a drum the judges have been banging on in comments to our surveys and interviews for years, but it still bears repeating. You can't follow rules if you don't know what they are. Increasingly, states are requiring attorneys to be technically competent--and this includes e-discovery. (Check out Bob Ambrogi's article on the topic if you're skeptical of the trend; you'll be convinced.)
- Confer with opposing counsel about ESI issues as early as practical. A recent conversation I had with Hon. Jay Francis (ret.) covered the importance of staying in front of e-discovery issues from the judges' perspective, but it applies to relations with opposing counsel as well.
- Find common ground with opposing counsel where appropriate, come to an agreement about what they can’t agree on, and be prepared to explain to the judge in layman’s terms what they agree on, what they don’t, and why. Excessive confrontation, especially when it isn't warranted, delays outcomes and increases costs. While judges aren't all e-discovery experts, they will resolve issues that are presented to them, so be prepared to make your case with specificity and clarity.
- Seek to discover only that information likely to move the case forward and be useful for proving or defeating claims and defenses. The 2015 amendments signaled an end to "discovery about discovery," restraining e-discovery to the facts of the case, as well as claims and defenses. Chances are good that judges will not be tolerant of fishing expeditions, so why bother indulging in them... especially since they will also undermine any chance of cooperation.
- State discovery demands, responses, and objections in clear, concise, specific, and straight-forward language, eschewing boilerplate. One survey respondent stated bluntly, "I detest boilerplate discovery responses." You might save some time, but do you want to run the risk of submitting a boilerplate response in that judges' courtroom?
- Assert only pertinent discovery objections, and for each objection be clear about what is being withheld and what is being produced. This observation links back to both #3 and #5 in this list, but bears repeating. Pro forma gestures--whether boilerplate response or excessive, pointless objections--may be more likely to backfire than yield the desired result. Restrain the impulse towards gamesmanship.
Please check out the original article on ACEDS' blog for more detailed data analysis, highlights from the judges' responses, and further context on the likely rationales behind the results. I for one am looking forward to reading (and sharing) more as this series continues.