Technological Competence at the Bar and the Bench: Judge John M. Facciola discusses Exterro’s 3rd Annual Judges Survey
By Jim Gill
*The following is the commentary of Hon. John Facciola (Ret.) United States Magistrate Judge, District of Columbia, for Exterro’s 3rd Annual Judges Survey
The first generation of judges who confronted e-discovery faced challenges that were unique. There was not a word in their legal educations about the topic, the Federal Rules of Civil Procedure still spoke about “phonorecords,” and “social media” had not yet been born. Indeed, their inventors had not been born. Whether they came from private practice or public service, these judges had probably used a word processor and might have been able to transmit electronically stored information over a phone line. That was the level of technological competence to which they could aspire. Judge Shira Scheindlin, who was to have a profound influence on the law and practice of electronic discovery, wrote an article asking whether the Federal Rules of Civil Procedure were up to the challenges and concluded that they were not. Her concern, shared by many other lawyers and judges, led to two sets of amendments of the Federal Rules of Civil Procedure that have transformed them as much as any amendments have ever done. Many judges participated in the creation of these new rules and have had to interpret them in their decisions.
The survey answer indicates that the judges are now equal to the challenges this new world created. That more than 80% of the respondents described the judges’ competence as OK (40.91%) and good (40.91%) and the small number who rated that competence as poor (13.4%) is not merely good news; it is extraordinary. One wonders if any other profession, challenged as all are by technological change, would get the same grades from their consumers.
The consequences for counsel are obvious. 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. For example, counsel, either advancing or resisting a claim of burdensomeness, had better be ready to make a specific showing of how the technology works and how it supports her argument. The days of outlandish claims of costs, pulled from the sky, are over. The judge has heard those claims before and now has the technological competence to assess the technical validity of every claim and argument made. 13
This competence did not come without cost. Every e-discovery program for judges is over-subscribed and, as experience showed, cutting back on such programs is a false economy. This survey dealt only with federal judges, and their state colleagues have significant challenges since their time for training is as limited as their budgets. Counsel have an obvious obligation to try to make sure that the state court judges get the training from which the federal judges have so obviously benefitted.
Finally, counsel is now challenged to have the technological competence that is at least equal to the judges’ competency. One wonders if the lawyers would get the same ratings as to their technical competence from their consumers. A technologically competent judge is going to insist that counsel have, at least, technological competence equal to their own. The necessity for counsel’s availing herself of opportunities to improve that competence is obvious as the next generation of judges and lawyers enters the world of autonomous cars and the Internet of Things with the prediction that some 50 billion devices will be on the Internet by 2020.
As this response suggests, it is a consistent complaint of the bar that judges do not sanction lawyers’ misbehavior in the discovery process. The complaint is a fair one in the sense that, with narrow exceptions, the grant of the power to sanction does not create automatic penalties but cabins that power by strict rules such as denying the sanction when the loser’s position was substantially justified. The power to sanction is highly discretionary, and appellate courts, with a different perspective, may find that the imposition of a given sanction abused that discretion. In some Circuits, for example, the misbehavior must be egregious and be proven by clear and convincing evidence. Confronted with such an appellate regime, district court and magistrate judges may have to conclude that the offending misbehavior does not reach
that level, particularly when it is based on a mistake concerning a technology that is new and complicated.
By the same token, the time may have come for the federal judges to be less forgiving. It is clear, for example, that an effective and useful meet and confer is a function of the preparation for it. That preparation has to be based on a thorough and easily explained understanding of the client’s computer systems. It should never happen that one party’s counsel knows what she has and needs, and the other party’s counsel is mystified by what she is hearing and offers nothing but a vague desire to “meet again and continue our discussions.” In that situation, counsel is well-advised to document what has occurred and tell the judge the obvious-the new regime of efficiency and cooperation envisioned by the 2015 amendments to the Federal Rules of Civil Procedure cannot come into existence if only one of the lawyers knows what she is doing. To be blunt, the judge may have to conclude that the carrot of saving time and money by knowing what you are doing is not working with a willfully ignorant lawyer, and it may be time to reach for the stick.
John M. Facciola was appointed a United States Magistrate Judge in the District of Columbia in 1997. Judge Facciola is a frequent lecturer and speaker on the topic of electronic discovery. Judge Facciola is a member of the Georgetown Advanced E-Discovery Institute Advisory Board and the Sedona Conference awarded him its Lifetime Achievement Award. He is also the former Editor-in- Chief of The Federal Courts Law Review, the electronic law journal of the Federal Magistrate Judges Association.