Dear In-House Counsel: 5 Pieces of Advice from Federal Judges

As a member of Exterro's marketing team, for the past few weeks I've been living, breathing, and writing (and also fitfully dreaming) our 4th Annual Federal Judges Survey. 30 sitting and recently retired judges shared with us, and with our clients and readers, their opinions on the state of e-discovery law and practice. The finished documents we've produced have shared hard data on their opinions, expert analysis from the judges themselves, and the insights we've drawn after spending time reviewing the results and debating what they mean.

However, the most fun elements of the judges survey are, by far and away, the ever insightful (and often incisive) quotes the judges themselves offered up as commentary on the survey itself. Some of the best ones have made their way into the report, but there were more than we could ever include. Perhaps the judges felt liberated by their anonymity, or perhaps they have seen so much that they are by turns cutting, wise, and just plain funny.

The best comments tended to fall into some common themes, much like the data, so we'd like to recap those lessons for counsel--and preserve these entertaining quotes--here in a blog entry for your enjoyment. Without further ado, here are five pieces of advice for you, direct from the federal bench.

1. Use proportionality appropriately. 

From a judge who does understand the principles:

“The proportionality principles are spouted out, but not really understood.” 

To the winner(s) of the Princess Bride Memorial "I do not think that word means what you think it means" Award: 

“I hear it in almost every argument though often it is still a relevance argument, just with a new (incorrect) name tag.”

2. Embrace and understand the technology. Please.

Tell us what you really think:

“Generally attorneys do not have sufficient technical knowledge.”

Quoting Glengarry Glen Ross, "Always be selling."

“We still have a big sales job to do with the Bar regarding not putting eyes on every document.”

3. Stop playing games. 

A strong diagnosis...

“Lack of good faith and honest cooperation among opposing counsel is the single biggest problem."

Requires an equally strong prescription.

“Eliminate dilatory practices, boilerplate objections, overbroad requests, and knee-jerk opposition.”

4. Learn the Rules!

Even judges don't want to play bad cop:

“We don’t want to issue sanctions. We want parties to do the right thing.”

As a Big Lebowski fan, I'm reminded of Walter Sobchak's tirade about, "This isn't Vietnam! There are rules!"

“This topic should be required in basic civil procedure in law school. ESI should not just be an elective class. Is it even on the bar exam? If not, it sure as heck should be.”

5. Cooperate.

As a parent, it's always important to explain the consequences of a bad decision.

“In-house counsel should tell their outside counsel to stop making the discovery process so combative, as it only adds to costs and expenses and gains nothing for the client in the long run.”

And finally, who says judges use overblown language?

"Cooperate."

"Work with opposing counsel."

If you want to take these pieces of advice (and more) to heart, download the complete 4th Annual Federal Judges Survey today!