By Tim Rollins
For the fourth year in a row, Exterro has conducted a survey of federal judges to better understand their opinion of the state of e-discovery law, competency, and practice. In 2018, with the help of partners BDO Consulting and EDRM at Duke Law, the survey went both wider and deeper. Thirty judges responded to the survey. In addition to quantitative data, the analysis of the survey data includes both quotes from respondents and expert analysis from eight sitting and recently retired judges.
To put it mildly, some of the survey results offer pointed criticisms of current e-discovery practices. Let’s take a quick look at four examples.
- Judges are not impressed with attorneys’ e-discovery competence.
- Lack of cooperation is the biggest cause of e-discovery problems.
- Almost half of judges felt making e-discovery education mandatory was appropriate.
- Judges don’t see organizations changing their preservation policies.
Only 23% of judges agreed with the statement, “The typical attorney possesses the legal and technical subject matter knowledge required to effectively counsel clients on e-discovery matters.”
When asked what factor causes the most e-discovery problems, 60% of the judges identified a lack of cooperation between opposing parties, more than lack of defensible policies, e-discovery education, and disparate skill levels combined.
46% of the judges surveyed thought that making e-discovery education mandatory, either in law school or as CLE courses, would be the best way to get the legal community as a whole to take e-discovery more seriously.
Despite the 2015 FRCP amendments’ insertion of “reasonable steps” language in Rule 37(e), only 15% of judges believe that organizations have materially changed their preservation policies.
Download the white paper “A Work in Progress: Judicial Perspectives on E-Discovery Proficiency” to find out what else the judges had to say.