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

E-Discovery doesn't often get headlines in the NYT and on NPR, but it did this week in a federal judge's ruling on a Kansas Voter Registration law.

We’ve long emphasized that too many attorneys remain undereducated in the requirements of e-discovery and are often ill-prepared to litigate matters effectively. Failing to understand the Federal Rules of Civil Procedure (FRCP) can jeopardize a case—and in more serious situations, lead to sanctions.

This issue recently made national headlines. Kansas Secretary of State Kris Kobach received a sharp rebuke and sanctions from Chief District Judge Julie A. Robinson of the District of Kansas. While the case itself was politically charged, the sanctions highlight broader lessons that go beyond politics and speak directly to professional competence in discovery and evidence.

In her June 18 ruling, Judge Robinson imposed sanctions that included a mandatory six hours of continuing legal education (CLE), specifically focused on federal or Kansas civil procedure or evidence. This requirement reflects a concern federal judges have been raising for years.

In Exterro’s 2015 Federal Judges Survey, 32% of judges disagreed 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, the situation appeared to worsen. In the 2018 survey, 47% of judges disagreed with that statement, while only 23% agreed—suggesting either increased judicial expectations or a widening gap in attorney competency.

Commenting on these findings, the Honorable John Facciola, U.S. Magistrate Judge (Ret.), posed a pointed 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 did not go so far as to refer Kobach to disciplinary authorities, she did cite “repeated and flagrant violations of discovery and disclosure rules,” including:

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

In issuing sanctions, Judge Robinson noted that it was unclear whether these violations were intentional or the result of unfamiliarity with the rules. Regardless, she emphasized that attorneys have a responsibility to understand and comply with procedural requirements:

The defendant chose to represent his own office and, as lead attorney, had a duty to familiarize himself with the governing rules and ensure that discovery obligations were met—despite the demands of public service.

This case aligns with broader judicial sentiment. In Exterro’s 4th Annual Federal Judges Survey, 73% of judges recommended CLEs, seminars, and coursework to improve e-discovery knowledge, while 10% suggested it should be taught in law school or tested on the bar exam.

Interestingly, judges generally have not advocated for sanctions as a primary solution to this competency gap. However, in this instance, the severity of the failures warranted corrective action through mandated education.