E-Discovery News on the New York Times Front Page in Kansas Voter Registration Case
Exterro 4th Annual Federal Judges Survey
For the past few yearswe’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 pursueas well as sanctions in more severe cases.
Todaythis 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 rulingfiled on June 18imposes 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 2015the 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 laterin Exterro’s 4th Annual Federal Judges Survey either the judges had grown more skepticalor attorneys have fallen farther behind the new FRCP and growing technical requirements of e-discovery. In 2018more judges disagreed (47%) than agreed (23%) with the statement.
In his commentary on these survey resultsHon. John FacciolaUS Magistrate JudgeDistrict 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 authoritiesshe 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 sanctionsJudge Robinson declined to identify the ultimate cause of Kobach’s repeated e-discovery violationsstating“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. Thereforethe Court finds that an additional sanction is appropriate in the form of Continuing Legal Education. Defendant chose to represent his own office in this matterand as suchhad a duty to familiarize himself with the governing rules of procedureand 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 CLEsseminarsand coursework to legal professionals looking to increase their e-discovery knowledgeand 10% felt e-discovery knowledge should be covered in law school or by the bar exam.
Interestinglynone of the judges recommended sanctions as a means to increase the seriousness with which the legal community treats e-discovery. In this caseat leastone 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.
