By Tim Rollins
The first white paper resulting from the 2018 Federal Judges Survey by Exterro, BDO Consulting, and EDRM at Duke Law revealed several areas where judges see shortcomings in attorneys’ e-discovery practices. (For more details, check out our post on the topic from last week.)
It’s all well and good to identify areas for improvement, but it’s even better to receive specific recommendations. In the second white paper resulting from this survey, “Good Faith and Honest Cooperation” – Judicial Perspectives on Improving E-Discovery Activities, we’re bringing you judges’ thoughts and opinions on specific steps attorneys can take to improve their e-discovery processes and outcomes.
So here are six great ways to improve your e-discovery activities, along with judges’ thoughts on them.
- Leverage Proportionality.
- Take “reasonable steps” to preserve ESI.
- Develop processes for new data types.
- Expect more from your outside counsel.
- Use technology.
Asked to identify the area that offered the greatest potential for improvement among counsel, 44% of the responding judges identified cooperation with opposing counsel.
In her analysis of the results, Hon. Joy Conti, Chief US District Judge, Western District of Pennsylvania, notes, “More than 50% of the surveyed judges would like to see more metrics used to support proportionality arguments.” Even more than that, they’d like to see concrete alternative remedies beyond sanctions.
Note: Respondents could choose more than one answer to this question.
Notably, in the judges’ eyes, reasonable steps includes not just sending legal holds and collecting data, but also documenting preservation efforts, according to two-thirds of the surveyed judges.
The newer the source of data, the less likely it will be preserved.
Demand that they prepare adequately and not create needless conflict when cooperation is an option. 37% of judges recommended “better understand of clients’ IT and ESI structures and policies.”
At this point, judges have embraced TAR. But it’s not necessarily enough to use technology; additionally you should be prepared to explain how you use it. Magistrate Judge Andrew Peck of the Southern District of New York explains, “It is incumbent on counsel to educate the Court about the use of different technologies and defensible processes, as judges may not have formed opinions on new technologies.”
If you’d like to dig deeper into the data or expert analysis behind these recommendations, download the whitepaper “Good Faith and Honest Cooperation” – Judicial Perspectives on Improving E-Discovery Activities today!