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Exterro Releases Third Annual Federal Judges Survey: E-Discovery Advice for Becoming a Better Attorney

Created on January 27, 2017

Former Content Marketing Manager at Exterro

Exterro 2017 3rd Annual Judges Survey

Today Exterro announced the results of the Third Annual Federal Judges Survey: E-Discovery Advice for Becoming a Better Attorney. Twenty-two (22) Federal Judges completed this year’s survey, conducted by Exterro, answering 25 questions about the state of e-discovery. In addition to data from each question, the published report includes expert commentary from retired federal judges and industry thought-leaders including Mary Mack, ACEDS; David Yerich, UnitedHealth Group; Geoff Klingsporn, City and County of Denver; Hon. John Facciola (Ret.) US Magistrate Judge, District of Columbia; Carolyn Southerland, Morae Legal; and Hon. Frank Maas (Ret.) US Magistrate Judge, Southern District of NY.


According to survey results, judges still feel the typical attorney doesn’t have the required e-discovery competency, and that applying cooperation and proportionality offers the greatest potential for improving this. One example is that more parties are making proportionality arguments, but they aren’t making good proportionality arguments. Again, cooperation and more education is key.

In regards to the FRCP changes that have now been in place for a little over a year now, 82% of the judges surveyed believe they have helped solve many current e-discovery problems. Rule 37(e) has given parties the blueprint for protecting themselves from ESI spoliation sanctions, but the rule is still being defined, especially when looking at new data types. This is why staying up on the latest case law rulings is important in order to see how the rules are interpreted by the court.

All in all, most judges feel that the recent amendments have provided the needed clarification on e-discovery rules, and that the Federal Rules Advisory Committee has given parties new tools to be proactive and start developing reasonable e-discovery parameters earlier on in the case. If parties do take advantage of this, it will only help attorneys get to the facts of the case sooner, which is the overall goal for everyone.


“Exterro has again, for the third time, gifted the e-discovery community with quantitative and qualitative feedback directly from the bench.  It is clear that the judges are lightyears ahead of the bar.  As Judge Facciola so aptly put it, ‘They are facing a bench that knows what it is doing and appreciates how the technology can render the discovery process cheaper and more efficient.’ The Judges Survey is a blueprint to do exactly that.” --Mary Mack, Executive Director of the Association of Certified E-Discovery Specialists (ACEDS)

“Once again, Exterro has done an excellent job of identifying significant issues in the e-discovery space and shedding light on judges' and litigants' views of them. Exterro's longitudinal survey confirms that the field of e-discovery continues to evolve at a rapid pace, and that judges and lawyers alike need to work hard to remain current regarding best practices." --Hon. Frank Mass (Ret.) United States Magistrate Judge, Southern District of New York


Bill Piwonka, CMO at Exterro, states “As we release this third annual federal judges survey, it’s gratifying to note that e-discovery proficiency has come a long way in just the past three years. Competency on both sides of the bench is viewed as improving, and the new FRCP rules are providing more clarity to practitioners at all levels. As we look forward to 2017, however, it is clear the judges still see cooperation as crucial to success. In order to achieve this, legal teams must become more knowledgeable about the data they have by employing a consistent, predictable, defensible, and orchestrated e-discovery process.”

Download the full report here:

Third Annual Federal Judges Survey: E-Discovery Advice for Becoming a Better Attorney