Just How Common Are E-Discovery Mistakes?

This article reviews some of the valuable conclusions drawn by e-discovery pioneer George Socha in his recent article Exterro and Duke/EDRM Judges Survey 2019 Series: Part 2, Taking Affirmative Action to Address E-Discovery Problems. If you find this summary valuable, make sure to check out the article on ACEDS' blog! You can find the first article in Exterro’s commentaries on these posts here; George Socha’s part one blog post is available here.

In February, Exterro and EDRM released the results of our 5th annual survey of the federal judiciary. (You can download the full report here, if you haven't seen it already.) Compared to past years, this year's report contained a treasure trove of data, as approximately 8 times as many judges responded to the 2019 survey as to the 2018 edition.

But our report, at 15 pages including a review of aggregated responses to all 20 questions, doesn't have the space or time to go truly deep on the data--over 250 sets of responses and comments from magistrate and district judge. Fortunately, EDRM co-founder and current Managing Director at BDO George Socha has started a series of articles on ACEDS' blog that will do just that: go truly deep on the data. In his second article in this series, he looks at the question of judges taking affirmative action.

At the highest level, the survey data demonstrated that most responding judges had acted affirmatively to address an e-discovery problem, with only 15% saying that they had not taken any such action in the past year. Digging deeper, though, revealed some additional insight that should be useful to e-discovery practitioners.

First of all, magistrate judges are more likely to act affirmatively on e-discovery matters. 95% of magistrates had acted affirmatively in the past year, compared to 78% of district judges. As magistrate judges are appointed to assist district judges, they likely tend to take more initial matters, ideally clearing up e-discovery issues before they become full-scale problems. That said, e-discovery issues are common enough that a significant majority of district judges have had to involve themselves at least once in the past year.

Next, despite the fact that most judges do take corrective action around e-discovery, that does not mean they do it often. One of the most interesting segments of the article is a series of calculations to determine how often judges act on e-discovery. Working back from numbers of judges at each level, as well as the number of cases filed that would be likely to have an e-discovery component, George calculated that judges have to act on e-discovery issues only on the order of 1% of the time. So by and large, e-discovery seems to be proceeding fairly effectively and efficiently in almost all cases.

As an e-discovery professional, this is, of course, great news. You’re doing a good job! That said, with district judges handling well over 200,000 matters last year, and magistrates approaching 350,000, that means over 5,000 civil matters required judicial intervention. Or, looking at it from an alternative perspective, for an enterprise with a portfolio of 100 ongoing civil matters, it’s highly likely to be involved in an e-discovery dispute that will require judicial intervention. Despite the relative rarity of judicial intervention, I think it’s safe to say no one is suggesting in-house e-discovery professionals should relax their standards.

Finally, the column provided an overview of the judges’ comments, which can also be found on the Duke/EDRM site, downloadable here. The categories of reasons for judicial intervention included:

• On the basis of misconduct, neglect, or rule violation
• On the basis of a dispute
• On the basis of communication issues
• To provide guidance
• Regular practice
• On the basis of privilege issues

Interestingly, two of these categories, “to provide guidance” and “regular practice” seem to reflect a post-2015 amendments version of “active e-discovery case management,” a topic that we’ve discussed before on this blog, and also one that seems to be a topic on which judges seem somewhat divided.

The other rationales, it seems, fall more into misconduct (or at least failure to use best practices) on the part of attorneys: willful or unintentional failure to follow the rules; a similar failure to communicate effectively; or the adoption of an overly-adversarial attitude, which, while appropriate for arguing a case is not so for discovery. For such issues, the well-worn advice to communicate and cooperate with both opposing counsel and the bench still apply.