264 Federal Judges Surveyed Giving New Insight on Attorneys Roles in Litigation and E-Discovery Issues
New report from Exterro and EDRM/Duke Law advises attorneys to be more proactive when tackling e-discovery issues.
PORTLAND, Ore., February 12, 2019 – Exterro® Inc., the preferred provider of software specifically designed for in-house legal and IT teams at Global 2000 and AmLaw 200 organizations, along with EDRM/Duke Law, released the 5th Annual Federal Judges Survey of Industry Trends, Practices, and Challenges Faced.
The report includes survey responses from 264 current or recently retired federal judges, representing nearly 19% of the federal bench. In the survey, judges responded to questions about:
- E-discovery missteps and remedies
- Working effectively with judges
- Federal judges’ e-discovery practices and involvement
“In the 5th Annual Federal Judges Survey, we hear from nearly 1 in 5 of the federal judiciary on their perspectives and practices around e-discovery. The results show that more than anything else, having a defined, repeatable, and defensible e-discovery practice is crucial for practitioners. They cannot rely on judges to be active discovery managers and guide their process,” said Bill Piwonka, CMO at Exterro.
Key takeaways of the report include:
Legal teams must be proactive and stay on top of e-discovery.
Only 22% of judges consider themselves active discovery case managers. Most judges wait for a request before getting involved in discovery disputes. When disputes arise, judges typically resolve them promptly, with 56% seeing themselves as umpires in discovery matters.
Best ways to improve e-discovery practices:
Legal teams should understand their client’s IT infrastructure and cooperate with opposing counsel to manage e-discovery effectively without requiring judicial intervention.
Nearly three-quarters of judges issued some e-discovery instruction in the past year.
While 13% of judges issued e-discovery sanctions, 74% took affirmative action—such as requiring additional conferences or issuing warnings—to resolve e-discovery issues multiple times during the year. Judges cited bad faith and poor communication as the leading causes of sanctions.
Lawyers’ e-discovery competency is improving.
56% of judges agree that lawyers appearing before them demonstrate an adequate level of knowledge and expertise in e-discovery matters, compared to 23% in 2018, showing a significant improvement in attorney competency.
“EDRM at Duke is very excited about the release of the 2019 edition of the Judges Survey regarding the state of eDiscovery. By cooperating with Duke EDRM, Exterro was able to expand the scope of the survey to include responses from more than 200 federal judges. This additional input expands the knowledge base and supports continued dialogue around the use of eDiscovery tools,” said Jim Waldron, J.D., Director at EDRM at Duke Law.
The full 5th Annual Federal Judges Survey of Industry Trends, Practices, and Challenges Faced can be downloaded from Exterro.
