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 neglecting their responsibilities in meet-and-confer negotiations, and greater cooperation is necessary to reduce the time 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, judges unanimously agreed that “with more effective e-discovery processes and a greater willingness to cooperate, parties would reduce costs without sacrificing defensibility.” To improve cooperation, judges recommended:
- Candidly representing e-discovery demands
- Working together to identify reasonable and proportional e-discovery parameters
- Proactively communicating between parties before a meet-and-confer
“[The survey] demonstrates that judges expect heightened cooperation among counsel in the discovery process, including more involvement from in-house legal teams,” 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
Another key takeaway is that new data privacy laws are expected to increase e-discovery costs, with 78% of judges agreeing.
“E-discovery has now required companies and the court to be even more concerned about privacy implications in document production,” said Hon. Michelle Childs, U.S. District Court Judge for the District of South Carolina. “It is essential that all parties involved in litigation engage proactively and cooperatively in early case assessment to ensure a well-reasoned, cost-effective approach to obtaining relevant and proportional discovery, while also controlling behavior that leads to increasing costs and possible sanctions.”
Judges also highlighted the growing risks associated with new data types, particularly ephemeral social media platforms like Snapchat and Instagram. About 68% identified these as major e-discovery risks for in-house legal teams.
Additionally, judges strongly encouraged the use of intelligent or AI-based early case assessment (ECA) tools to quickly identify and review relevant data before collection. These tools can significantly reduce costs, and judges rated Smart ECA technology as 3.5 times more important than preservation technology.
