Disruptive Change Needed for Lawyers to Become Competent in E-Discovery According to New Federal Judges Survey

USA/Canada News

05
Feb
2015

Editor

Exterro® Inc., the preferred provider of software specifically designed for in-house legal and IT teams at Global 2000 organizations, today released the findings of the first-annual Federal Judges’ Survey on E-Discovery Trends and Best Practices. Findings from the new survey indicate that disruptive change is needed for lawyers to become educated and competent in e-discovery.

0% of the participating judges “Completely Agreed” that the typical attorneys appearing before them possess the subject matter knowledge required to effectively counsel clients on e-discovery matters. Specific comments from some of the participating judges included:

• “Too many attorneys have not gained the knowledge they need to effectively represent their clients.”
• “Frequently, knowledge about e-discovery is asymmetrical, with one side having no clue.”
• “Parties often fail to consider e-discovery pre-suit or even early in the lawsuit and thus make potentially irreversible mistakes.”

“We’ve seen a tremendous amount of case law and changes to the Federal Rules of Civil Procedure (FRCP) in the past 10 years related to e-discovery in addition to rapid technology advancement. Our intent with this survey was to hear directly from the judges who are ruling on the issues and cases impacting today’s corporations, and get a sense for what they are experiencing in the courtroom. The findings of the survey were quite alarming, particularly for organizations involved in high-stakes litigation on a regular basis,” said Bill Piwonka, chief marketing officer at Exterro.

Additional Findings on E-Discovery Practice Trends

The new survey compiled insights from the bench’s most influential and well-versed judges, such as recently retired Magistrate Judge John Facciola from the District of Columbia, Chief Magistrate Judge Frank Maas and Magistrate Judge James Francis from the Southern District of New York, and Magistrate Judge Craig Shaffer from the District of Colorado. The participating judges’ responses revealed the following e-discovery practice trends that are driving the need for disruptive change in the legal community:

1. ESI (Electronically Stored Information) identification proves the most challenging – 55% of the judges surveyed indicated that evidence identification, or failing to implement procedures to ensure all potentially relevant electronically stored information (ESI) is preserved and collected, are often the biggest mistakes that surface. Further, the primary source for the mistakes is attributed to poor cooperation (32%), miscommunication (27%) and lack of education (27%).
2. Predictive coding is still not widely used – 77% of the responding judges “completely agree” or “somewhat agree” that the amount of ESI in the cases presented before them has substantially grown, however only 45% see predictive coding being employed in cases regularly presented before them.
3. Preservation and cooperation require huge improvements – 45% of the judiciary indicated that data preservation practices is the area where counsel needs the most improvement followed by applying the rules for cooperation and proportionality at 27%. “Too much time and money is wasted fighting about issues that should be resolved cooperatively,” said one judge.
4. Counsel must prepare for new data source challenges – Social media (33%), followed by cloud storage (29%) and BYOD/mobile devices (24%), will have the most impact on e-discovery in the future, according to the responding judges. “BYOD and social media will create more preservation problems,” commented one judge.
5. Pending FRCP amendments will only partially solve the e-discovery conundrum – Only 57% of the responding judges “completely agree” or “partially agree” that the upcoming amendments to the FRCP will help solve the many problems that currently occur in e-discovery today. “The proposed amendments will be effective if counsel and the court learn to use the amendments effectively. Cultural change is necessary to achieve the full potential of the amendments,” commented one judge.

“Education, preparedness, a willingness to apply proportionality principles and cooperation should be foundational principals for every attorney practicing today,” said Judge Facciola, retired magistrate judge from the District of Columbia. “Too often, we find one side prepared and another one not, and we judges have learned that cooperation is a function of competence. You cannot possibly expect to negotiate effectively if you are also trying to disguise that you are terrified that you do understand what the issues are. Counsel, both in-house and outside, need to become far more educated, not just on the law but also on the technology that is used to aid the process.”

“Technology has advanced tremendously over the past 10 years, but lawyers did not go to law school to become technologists; they were trained to represent clients to win in often adversarial environments,” said David Horrigan, analyst and counsel at 451 Research. “Proportionality and cooperation can only be achieved if lawyers understand how and when to apply technology to find the facts and contain the scope prior to entering into negotiations. This process requires education and partnering with IT--as well as outside counsel--much earlier in the process. This type of change is not easy, but it’s essential to meet judicial requirements and protect client interests.” 

Judges to Analyze Results in Feb. 25 Webcast

Exterro surveyed 22 federal judges to gain insight into the current state of e-discovery in the legal industry. The survey comprised 15 multiple choice questions on a host of e-discovery topics and issues. The results and associated comments provide a picture of overall e-discovery competency, e-discovery trends to be aware of in the future and how attorneys can improve their e-discovery acumen. Three of the participating judges, Chief District Judge Joy Conti (W.D. Penn), Chief Magistrate Judge Frank Maas (S.D.N.Y.) and retired Magistrate Judge John Facciola (D.D.C.), will be analyzing the results of the survey in an upcoming webcast being hosted by Exterro on Feb. 25, 2015, at 1 p.m. ET. Entitled, “Federal Judges Panel: Avoiding ‘Irreversible Mistakes’ in E-Discovery,” the judges will offer advice for preventing irreversible mistakes from failing to consider e-discovery requirements early in a matter.