In 2020, Federal Judges Want to See Attorneys Get Along in E-Discovery Disputes

Note to in-house legal teams: The federal judiciary wants to see attorneys work together earlier during e-discovery disputes—and they aren’t afraid to take action for intentional misconduct, either—according to the 6th Annual Judges Survey. The latest opinions from U.S. District and Magistrate Judges indicate that in-house legal teams have been shirking their duties regarding meet-and-confer negotiations, and more cooperation is necessary to reduce the time-suck and costs associated with discovery.

“The necessity of meaningful conferences with opposing counsel and an interactive discussion with the judge in a Rule 16 conference about the scope of discovery and privacy implications is the key takeaway from this report,” Said Hon. Xavier Rodriguez, U.S. District Court Judge for the Western District of Texas. “Secondly, although Rule 37(e) has made it more difficult to obtain sanctions, this report makes it clear that judges are willing to deploy other portions of the federal rules and the court’s inherent authority to discipline bad behavior.”

In the survey, the judges were in unanimous agreement that “with more effective e-discovery processes and a greater willingness to cooperate, parties would reduce costs and not sacrifice defensibility.” And regarding how parties should cooperate, judges made the following suggestions:

• Candidly represent e-discovery demands
• Work together to identify reasonable and proportional e-discovery parameters
• Proactively communicate between parties before a meet-and-confer

“[The survey] demonstrates that judges expect heightened cooperation among counsel in the discovery process, including more involvement with in-house legal counsel,” said Hon. Elizabeth Preston Deavers, U.S. District Court Judge for the Southern District of Ohio.

Embracing Technology, Data Privacy Laws, and New Data Types

Among other key takeaways include beliefs that opponents of privacy regulations have long embraced: that new data privacy laws are likely to increase e-discovery expenses, with 78% of judges in agreement.

“E-discovery has now required companies and the court to be even more concerned about privacy implications in document production,” said Hon. Michelle Childs, a U.S. District Court Judge for the District of South Carolina. “Additionally, it is essential that all parties/representatives involved in the litigation engage proactively and cooperatively in early case assessment to ensure a well-reasoned, cost-effective approach to obtain relevant and proportional discovery, while also controlling behavior that leads to increasing discovery costs and possible sanctions.”

The judges also commented on new data types from ephemeral social media apps—like Snapchat or Instagram—with 68% saying that they represent the biggest e-discovery risks for in-house legal teams. And by wide margins, judges believe that attorneys should use more intelligent/AI-based early case assessment (ECA) tools to quickly identify and review responsive data prior to collecting it—which could help legal departments drastically shave their costs. Overall, judges placed Smart ECA technology as 3.5 times as important as preservation technology.