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Are Activist Judges a Thing (in E-Discovery)?

Created on March 1, 2019

E-Discovery Market Analyst at Exterro

Every so often, the news junkies among us are treated to a politician scoring points by decrying “activist judges” who (allegedly) legislate from the bench, moving beyond the intent or the letter of the law with a controversial case ruling. Depending on who issues the outcry, they’re accused of moving the clock backward or forward to some version of America that the speaker disagrees with.

Fortunately, the Exterro blog (and I) attempt to avoid politics, instead looking at the technical and/or logistical issues of e-discovery. And in that realm, the notion of judicial activism arises from the language of Rule 1 of the Federal Rules of Civil Procedure, which reads:

These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.

The “just, speedy, and inexpensive” phrase has been argued by many (including this blog on occasion) to mean that the bench and bar should collaborate to resolve cases efficiently, rather than serve as unconstrained investigations in search of definitive truth. Such an outlook, by necessity, implies that practical considerations (time and money, naturally) should trump the exigencies for endless discovery; when attorneys fail to cooperate, judges should proactively resolve disputes to keep the case moving on the right path.

It turns out such concerns about activism, at least in e-discovery, might be more theoretical than real.

In Exterro’s and EDRM’s 2019 Federal Judges Survey, which polled over 260 sitting and retired federal judges on topics that included e-discovery law, practices, and missteps, the respondents clearly indicated that they did not view active e-discovery management as their role. Almost as many (21%) thought that judges had no role in the e-discovery process as thought judges should serve as active case managers (22%), monitoring discovery and intervening before problems arose. A distinct majority (approximately 56%) felt their role was simply to address discover issues as they arose.

Hon. James Francis, US Magistrate Judge in the Southern District of New York (Ret.) was not surprised by this result. He observed, “Many judges have served on the bench for a long time, and as with anyone else, it takes a lot to create real change. If a judge’s way is to act as an umpire, not an active case manager, I’m not surprised that the [FRCP] Rule 1 language hasn’t caused a sea change in judicial behavior.” In fact, the respondents to the Judges Survey have considerable experience and may be less prone to change, with over 60% serving more than a decade, and fully one-third with over two decades of experience.

Some judges responding to the survey used their comments to argue that proactive case management was efficient. One comment explained, “I think it is important to be proactive, to enforce the rules, and to get counsel to play nice during the discovery process. It is much easier to deal with a discovery problem at the outset than to let it fester and erupt on the eve of the discovery cut-off date.”

But underlying the very question is an assumption that active case management is itself a good thing. Judge Francis explained, “We may think that in the best of all worlds, active case management is a desirable thing, but that may not be what lawyers think. In an informal poll conducted at a conference I attended, attorneys were asked if they preferred working with judges who were proactive case managers. I was shocked to see how overwhelmingly they did not.”

There may be multiple reasons why attorneys don’t want judges actively engaged in e-discovery, including a notion that raising issues might alert the court, and more importantly the opposition, to potential weaknesses in their case. However, the notion that these issues won’t eventually arise anyway is probably mistaken.

“Regardless of whether lawyers want to control the issue,” Judge Francis advises, “if you raise the issue before the judge early on, you’re less likely to have a train wreck during discovery. If there’s a problem, be upfront about it. No matter what the nature of the dispute—if there’s a problem locating documents or identifying custodians—knowing that early is better than having it blow up later.”

For more insight into the thoughts, opinions, and practices of federal judges, download Exterro’s and EDRM’s 2019 Judges Survey today.