4 Practical E-Discovery Tips for Practicing Attorneys

Just under a month ago, Exterro and EDRM released their 2019 Federal Judges Survey. We’ve talked about the survey a few times on the blog, looking at some of the biggest takeaways from the results of this poll of over 260 federal judges.

If you’re interested, dig deeper into some articles that look at:

• Why attorneys need to understand their clients’ IT infrastructure
• Why judges issue sanctions (or reprimands) over e-discovery missteps
• Whether or not judges are active discovery managers

However, these articles have, for the most part, looked at the results of the survey. Far be it from me to say that that sort of analysis isn’t worthwhile, but I also understand that for many readers, the real question is “What’s in it for me? Why should I care? I have a job to do, and it’s not going to change based on what these particular judges think.”

In a recent webinar titled 2019 Federal Judges Survey Key Takeaways and Trends, Jim Waldron, Director of EDRM at Duke Law, and John Rabiej, JD, Deputy Director of the Bolch Judicial Institute at Duke Law, offered some deeper analysis of the results that translated into practical advice for attorneys. Based on some of the key results of the survey, they offered four pieces of advice attorneys should take to heart.

Attorneys should be prepared to work e-discovery issues out with their counterparts.

Despite significant emphasis in both the FRCP amendments of 2015 and Chief Justice Roberts’ 2015 report, relatively few judges (22%) consider themselves active e-discovery case managers. That doesn’t mean they’re not concerned with e-discovery, Waldron said, but rather that they see their role as setting the parameters for the attorneys before them, “When judges say they’re not active case managers, they are active discovery case managers in so far as that they set in place things in the very beginning of the case. But then they expect the parties to work things out.” John Rabiej explained, “The way the system is set up, the way the rules are set up, discovery has always been the lawyer’s responsibility.”

Before you go to a judge with an e-discovery issue, make a real attempt to resolve it.

Rabiej notices that lawyers face a strategic dilemma in deciding whether or not to bring an issue to the judge’s attention. “No lawyer wants to be the first to raise a problem, particularly a discovery problem, with a judge, because you really take the risk of being labeled as a complainer, or maybe even worse, as being uncooperative,” he explained. “I would suggest that you make a record of all your attempts at trying to resolve the issue with your opponent, and it’s got to be a meaningful discussion… You want to make sure that you only go to the judge as a last resort.”

Stay in front of the “new data types” for e-discovery collection curve.

Rabiej observed a pattern generally holds as far as new data types in discovery emerge. “When you add a new data source, let’s say texting, what the lawyers did is they came up with informal or formal stipulations that neither party is going to make a request for information located in texting. Why? Because they didn’t know how to get to the information, they didn’t know how expensive it was, and they didn’t want to be bothered with it… but then when you have a new e-dsicovery product that comes up with a convenient way to get access to this information, or once it becomes evident that the information on these new sources of data can be extremely valuable in your case… you’re going to go after it.” In essence, these sorts of gentlemen’s agreements (for lack of a better term) become obsolete once attorneys recognize the probative value of a new data source and have the means to use it to further their case. Even if social media or text message data isn’t currently the source of spoliation sanctions, it will presumably become more and more so in the coming years.

Know your judges' e-discovery practices and opinions.

This may seem like common sense, but it bears repeating. Different judges have different opinions and practices around e-discovery, so you need to know the judges in your district and meet their expectations. One area this especially matters is on the topic of cooperation. “Some judges have a much broader definition of cooperation than others do,” Jim Waldron said. “You’ve got to know your judges, know which ones are in the pro-cooperation camp, and be aware of their case load.”

Of course, there are many more ways attorneys can and should take the lessons from the 2019 Federal Judges Survey and apply them to their e-discovery practices. One of the key ways to learn about these takeaways is by listening to expert analysis—and you have a great opportunity to learn from more perspectives this week in the webinar What Did 265 Federal Judges Say About E-Discovery? The webinar takes place Wednesday, March 6^th, at 1:00 pm ET/10:00 am PT, and features perspectives on the judges survey from:

• Hon. Ronald Hedges, former US Magistrate Judge and Senior Counsel at Dentons US LLP
• Thomas Mullane, eDiscovery Specialist at United Technologies
• Anne Bentley McCray, Partner at McGuireWoods