Federal Judges Survey: Biggest Problems in E-Discovery are Caused by Mindset of Practitioners

Global News

21
Feb
2018

Editor

Exterro^® Inc., the preferred provider of software specifically designed for in-house legal and IT teams at Global 2000 and AmLaw 200 organizations, in conjunction with BDO Consulting and EDRM/Duke Law released the 4th Annual Federal Judges Survey: Judicial Perspectives on the State of E-Discovery Law and Practice.

The report collected survey responses from 30 current or recently retired Federal Judges. The judges’ responses to the questions asked provide an in-depth examination of how the bench views:

• The legal community’s e-discovery proficiency
• Areas to improve e-discovery processes and outcomes
• The 2015 Federal Rules of Civil Procedure changes

“In the 4th annual Federal Judges Survey, we hear from the largest group of federal judges in survey history on their perspectives of e-discovery practices and the FRCP. While some of the Rules changes were designed to promote cooperation among parties, judges have consistently noted attorneys are still acting adversarial in their practices. Thus, it could easily be argued the biggest problems facing e-discovery practitioners today are caused by their mindset and approach, rather than the tools available,” said Bill Piwonka, CMO at Exterro.

Key takeaways of the report include:

• 60% of judges said that the lack of cooperation between parties was the cause of e-discovery problems, compared to 10% saying either lack of defensible policies or lack of e-discovery education. Judges believe that the biggest improvements needed are not in technology but in lawyers’ mindsets, including greater cooperation and preparation.
• In the judges’ eyes, attorneys have been slow to develop their e-discovery competency. Only 23% of judges strongly or somewhat agree with the statement “the typical attorney possesses the legal and technical subject matter knowledge required to effectively counsel clients on e-discovery matters.”
• 46% of surveyed judges felt that e-discovery education should be mandatory, either in law school or through continuing legal education courses.
• When asked to evaluate how attorneys were leveraging proportionality to improve e-discovery outcomes, the surveyed judges found that more parties were making proportionality claims on a frequent basis, averaging a 3.9 on a scale of 1 (never) to 5 (a lot more). As one respondent said, “Proportionality is the new black.”
• Preservation practices have largely stayed the same, 70% of the surveyed judges were neutral, neither agreeing nor disagreeing with the statement, “With the insertion of the ‘reasonable steps’ to preserve language in Rule 37(e), parties modified their approach to preservation.”

“Judges responding to the 4th Annual Federal Judges Survey were clear, federal judges are handling the e-discovery challenges presented to them fairly well while the lawyers who appear before them have made little progress. Attorneys are demonstrating far too little of what the judges most want to see: basic e-discovery competence; meaningful efforts at cooperation; and a focus on proportionality. The judges’ bottom-line message to attorneys: Take e-discovery seriously, roll up your sleeves, and finally start the hard work of learning how to do e-discovery well,” said George Socha, Managing Director with BDO Consulting and co-founder of EDRM.

“The Judges' Survey reveals how a group of judges, who are most involved in dealing with e-discovery issues, sees the impact of the 2015 Federal Rules Amendments, their role in handling discovery, and what counsel can and should do to improve the process.  Their views run from the importance of cooperation and competence to the need to use Federal Rule of Evidence 502(d) Orders. The value of this information is to help counsel meet judicial expectations and their obligations under the Rules to clients and the Court,” said Honorable Andrew Peck, US Magistrate Judge for the Southern District of New York.

In addition to the quantitative results of the survey, the report includes expert opinions of eight sitting and former Federal Judges: Judge John Facciola, Judge Ronald Hedges, Judge Michelle Childs, Judge David Waxse, Judge Joy Conti, Judge Xavier Rodriguez, Judge Frank Maas, and Judge Andrew Peck. Download the report here.