E-Discovery News on the New York Times Front Page in Kansas Voter Registration Case

For the past few years, we’ve been making the point that all too many attorneys are under-educated in the requirements of e-discovery and ill-prepared to litigate matters successfully. Attorneys who do not understand the requirements of the Federal Rules of Civil Procedure risk the failure of the litigation they pursue, as well as sanctions in more severe cases.

Today, this message earned headlines from the New York Times and from National Public Radio. Kansas Secretary of State Kris Kobach received a sharp rebuke and sanctions from Chief District Judge Julie A. Robinson (District of Kansas). While the case is politically fraught (as Kobach was defending a law requiring Kansans to provide proof of citizenship in order to register to vote), the sanctions themselves speak to lessons that transcend politics and reside firmly in the realm of professional competence around the Rules governing discovery and evidence.

Judge Robinson’s ruling, filed on June 18, imposes sanctions including a mandatory six hours’ of continuing legal education that “must pertain to federal or Kansas civil rules of procedure or evidence.” This requirement by Judge Robinson echoes a theme that federal judges have been sounding on for years in Exterro’s Annual Federal Judges Survey.

In 2015, the year of Exterro’s first survey of federal judges, 32% of judges did not agree with the statement, “The typical attorney appearing before me possesses the subject matter knowledge (legal and technical) required to effectively counsel clients on e-discovery matters.” Three years later, in Exterro’s 4th Annual Federal Judges Survey, either the judges had grown more skeptical, or attorneys have fallen farther behind the new FRCP and growing technical requirements of e-discovery. In 2018, more judges disagreed (47%) than agreed (23%) with the statement.

In his commentary on these survey results, Hon. John Facciola, US Magistrate Judge, District of Columbia (Ret.) rhetorically asked the question, “Will 2018 be the year when a judge refers a lawyer to disciplinary authorities because the lawyer was demonstrably incompetent during a discovery conference involving e-discovery?”

While Judge Robinson’s sanctions did not rise to the level of submitting Kobach to disciplinary authorities, she called out Kobach for “repeated and flagrant violations of discovery and disclosure rules,” including “several instances” of:

• Failure to disclose evidence under FRCP 26(a)
• Failure to supplement discovery under FRCP 26(e)
• Failure to designate an expert witness

In issuing the sanctions, Judge Robinson declined to identify the ultimate cause of Kobach’s repeated e-discovery violations, stating, “it is not clear to the Court whether Defendant repeatedly failed to meet his disclosure obligations intentionally or due to his unfamiliarity with the federal rules. Therefore, the Court finds that an additional sanction is appropriate in the form of Continuing Legal Education. Defendant chose to represent his own office in this matter, and as such, had a duty to familiarize himself with the governing rules of procedure, and to ensure as the lead attorney on this case that his discovery obligations were satisfied despite his many duties as a busy public servant.”

This ruling also resonates with the recent results of Exterro’s Federal Judges Surveys. In the 4th Annual Federal Judges Survey, 73% of judges recommended CLEs, seminars, and coursework to legal professionals looking to increase their e-discovery knowledge, and 10% felt e-discovery knowledge should be covered in law school or by the bar exam.

Interestingly, none of the judges recommended sanctions as a means to increase the seriousness with which the legal community treats e-discovery. In this case, at least, one judge felt that e-discovery failures rose to the level of requiring sanctions for this purpose.

Find out about the judges’ other recommendations by downloading Exterro’s 4th Annual Federal Judges Survey today.