Federal Judges Survey

Transcription

1 Federal Judges Survey E-DISCOVERY BEST PRACTICES & TRENDS Results show disruptive change is needed for lawyers to become e-discovery competent.

2 Introduction E-Discovery is not a simple activity. Twenty years ago, few lawyers would have thought the notion of legal competency would come to include understanding and advising on technical issues surrounding the discovery of electronic information. In today s digital age, however, lawyers must be both legally and technically savvy to competently advise their clients. That means understanding things like the implications of collecting data in a specific way or the legal ramifications of preserving electronically stored information (ESI) on certain data sources. As the definition of legal competency has evolved to include e-discovery, it s somewhat obvious that lawyers must evolve too. Yet the common perception is that only a small fraction of the legal community has taken the time to learn about e-discovery, and that many lawyers are still struggling to adequately advise their clients on e-discovery issues. To get a little more insight into the current state and test these common perceptions, Exterro recently surveyed federal judges for their perspective. Exterro sent a survey out to a subset of the federal judiciary and collected responses from 22 of the most influential and well versed judges on the bench when it comes to e-discovery issues. This survey was comprised of 15 multiple choice questions on a host of e-discovery topics. The results and associated comments paint a clear 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. Chief District Judge Joy Conti Western District of Pennsylvania 12 YOS Chief Magistrate Judge James O Hara District of Kansas 14 YOS District Judge David Campbell District of Arizona 11 YOS District Judge Xavier Rodriguez Western District of Texas 11 YOS Magistrate Judge James Francis Southern District of New York 29 YOS Magistrate Judge Andrew Peck Southern District of New York 19 YOS Magistrate Judge Michael Hegarty District of Colorado 9 YOS Magistrate Judge Kristen Mix District of Colorado 7 YOS District Judge Nora Fischer Western District of Pennsylvania 7 YOS Chief Magistrate Judge Emeritus Lorenzo Garcia District of New Mexico 36 YOS Magistrate Judge John Facciola (Ret.) Magistrate Judge Sidney Schenkier Northern District of Illinois District of Columbia 16 YOS 17 YOS Magistrate Judge Sheila Finnegan Northern District of Illinois 4 YOS Anonymous Judge Chief Magistrate Judge John Ott Chief Magistrate Judge Elizabeth Laporte Chief Magistrate Judge Frank Maas Northern District of Alabama Northern District of California Southern District of New York 17 YOS 16 YOS 15 YOS Magistrate Judge David Waxse District of Kansas 15 YOS Magistrate Judge Craig Shaffer District of Colorado 14 YOS Anonymous Judge Anonymous Judge Magistrate Judge Lisa Lenihan Western District of Pennsylvania 10 YOS

3 Introduction continued Plain and simple, the survey results had one common theme: DISRUPTIVE CHANGE IS NEEDED FOR LAWYERS TO BECOME E-DISCOVERY COMPETENT. Too many attorneys have not gained the knowledge they need to effectively represent their clients. That s how one judge described the significance of attorneys general ignorance and aversion towards e-discovery. Another judge added, Frequently, knowledge about e-discovery is asymmetrical, with one side having no clue. If representative across all cases, this observation has staggering implications for the efficacy of counsel. The judges cited numerous reasons why e-discovery doesn t get the attention it needs, but a common observation was that a lack of comfort and understanding causes many attorneys to neglect their e-discovery responsibilities. As one judge described, Parties often fail to consider e-discovery pre-suit or even early in the lawsuit and thus make potentially irreversible mistakes. NOTABLE AUTHORSHIPS OF PARTICIPATING JUDGES "Defensible" By What Standard? by Judge Craig Shaffer, Sedona Conference Journal Discovery of Social Media by Judge Kristen Mix, The Federal Courts Law Review Do I Really Have To Do That? Rule 26(a)(1) Disclosures and Electronic Information by Judge David Waxse, Richmond Journal of Law & Technology Essentials of E-Discovery by Judge Xavier Rodriguez, TexasBarBooks Managing E-Discovery and ESI From Pre-Litigation Through Trial Co-Authored by Judge John Facciola (Ret.), American Bar Association Search Forward by Judge Andrew Peck, Law Technology News Creating the Criteria and the Process for Selection of E-Discovery Special Masters in Federal Court by Judge Nora Fischer, The Federal Lawyer

4 Introduction continued Key Takeaways from the Federal Judges Survey Based on the survey results, there are two main reasons why attorneys lack e-discovery competency: 1. Lack of Knowledge about their Client s E-Discovery Environment Particularly noteworthy is the lack of knowledge of the client s ESI systems, explained one judge. So what does it mean to not have a clue about a client s ESI systems? One respondent offered a particularly good example, Many lawyers still are not skilled in search processes and lack knowledge of facts early on to be able to identify good search terms and custodians. They also don t understand need for iterative process. The same judge added that courts could do a better job allowing sufficient time for these processes to run their course. 2. Lack of Cooperation Even when parties do account for e-discovery, it s hard for many attorneys to agree on e-discovery terms with the opposition, a major point of frustration among the judges surveyed. Cooperation in an adversarial setting like litigation is a hard sell to most attorneys. But judges are still imploring parties to take it seriously. Why is this such a priority? The judges say cooperation saves everyone time and money and shouldn t impact the arguments and merits of the case. One judge said, Too much time and money is wasted fighting about issues that should be resolved cooperatively. While another one opined, Too often parties still resort to over-broad requests on the one hand and reluctance to disclose what relevant electronic data is available on the other. LOCATION OF PARTICIPATING JUDGES PARTICIPATING JUDGES: MAGISTRATE VS. DISTRICT Chief District Judge District Judge Chief Magistrate Judge Magistrate Judge

5 Introduction continued Recommendations Moving Forward If there is a silver lining in the survey results it s that all the problems identified can be fixed. The judges offered a couple keys ways to help improve attorneys e-discovery knowledge and skill. Be Proactive E-Discovery success starts with planning. Create a playbook for every civil case and have e-discovery on the checklist of items to cover early with your client and with opposing counsel, advised one judge. Of course, e-discovery preparedness necessitates an understanding of the technology and data involved in the case, as articulated by one judge, Understand your client s sources; discuss early on with opponent what the scope of discovery should be and what form(s) of production will be used; consider tiered discovery use iterative searches to vet the effectiveness of narrowing tools you are using before you have applied them to the entirety of the database being searched; be willing to explore solutions that will strike a court as reasonable efforts at compromise when that is appropriate. Another judge offered sound advice for attorneys who are especially e-discovery challenged, If you are not adept with e-discovery, consider consulting with another lawyer who is. Take Advantage of Privilege Waivers The risk and costs associated with inadvertently producing privileged documents is a common source of e-discovery frustration among attorneys. The survey revealed that it s equally vexing for judges, primarily because attorneys have a simple way to mitigate the issues by using privilege waivers under Federal Rules of Evidence (FRE) 502(d). The judges were amazed by how few attorneys actually take advantage of the rule. No one ever raises it. Ever, said one judge. Another respondent elaborated further, Not a single party has asked me to enter a 502(d) order. One judge explained the benefits of entering into FRE 502(d) orders, explaining that attorneys can reduce need for expensive attorney s eyes only review, although not eliminate entirely. Instead, judges are seeing attorneys use expensive, outdated and labor-intensive technology for privilege reviews. MEMBERSHIPS MEMBERSHIPS OF PARTICIPATING JUDGES Judicial Advisory Board for the Sedona Conference Advisory Committee on Civil Rules Judicial Conference of the United States Adjunct Professors 18 % 9 % 4 % 31 % 5 judges have been deemed by The 4 American Lawyer: at the forefront of electronic discovery. of those judges participated in this survey: Magistrate Judge Andrew Peck Magistrate Judge John Facciola District Judge Paul Grimm District Judge Shira Scheindlin

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7 To effectively counsel clients, lawyers must improve their e-discovery competency... SURVEY QUESTION: The typical attorney appearing before me possesses the subject matter knowledge (legal and technical) required to effectively counsel clients on e-discovery matters. Completely agree 0 % Somewhat agree 68 % Don t agree 32 % Don t know Other 0 % 0 % There seems to be a pretty wide gap between the competent and incompetent when it comes to e-discovery knowledge for attorneys. One judge explained, Some attorneys are highly competent; but most appear to have significant gaps in their understanding of e-discovery principles. This lack of e-discovery knowledge should not be downplayed. It can greatly diminish an attorney s ability to adequately counsel clients. Too many attorneys have not gained the knowledge they need to effectively represent their clients, said another judge. Too many attorneys have not gained the knowledge they need to effectively represent their clients. Page 1

8 ...with a majority of e-discovery mistakes being made in the early stages of a case. SURVEY QUESTION: In my courtroom, the most common e-discovery mistakes occur in the stage. Review 0 % Production Other 19 % Collection Preservation 13 % 13 % 55 % Identification One of the biggest reasons why the identification stage is the most problematic for parties is that they don t take the time to understand their e-discovery requirements at the outset of the case. One judge emphasized this point, Parties often fail to consider e-discovery pre-suit or even early in the lawsuit and thus make potentially irreversible mistakes. While the identification stage may be a big problem area, preservation and collection are also areas where e-discovery mistakes are likely to occur. Most notably, parties often fail to implement procedures to ensure all potentially relevant data is preserved and collected. Repeatedly we find custodians who have not preserved, said one judge. Parties often fail to consider e-discovery pre-suit or even early in the lawsuit and thus make potentially irreversible mistakes. Page 2

9 These e-discovery mistakes occur for a variety of reasons SURVEY QUESTION: What is the source of the most common e-discovery problems for parties in your court? 32 % No or poor cooperation between the parties 27 % Miscommunication between internal team members 5 % Defensible policies are not implemented or followed 27 % Parties are not educated on e-discovery issues 9 % Other Most e-discovery problems stem from one common source: attorneys are not equipped with the necessary processes to effectively manage e-discovery. Most problems seem to relate to the absence of adequate procedures. If the proper procedures were utilized, even without cooperation, there would be fewer issues, stated one judge. By not having the right procedures in place, a variety of e-discovery issues may occur. As one judge commented, I cannot identify a single most common source. I have seen problems arise from poor cooperation among the parties, the lack of defensible policies, and a lack of knowledge on the part of lawyers and parties. I cannot identify a single most common source. I have seen problems arise from poor cooperation among the parties, the lack of defensible policies and a lack of knowledge on the part of lawyers and parties. Page 3

10 ...and these mistakes will only be exacerbated with increasing litigation data volumes. Predictive coding may help. SURVEY QUESTION A: The typical amount of ESI involved in matters before me has grown substantially over the past five years. SURVEY QUESTION B: I see predictive coding being employed with regularity in cases. 50 % 45 % 41 % 27 % 14 % 9 % 0 % 0 % 0 % 9 % 5 % 0 % Completely agree Somewhat agree Neither agree or disagree Don t agree Don t know Other Organizations are retaining more data. As a result, the typical amount of data involved in litigation is growing. As one judge noted, Counsel used to reference ESI by the equivalent in number of pages - now they discuss terabytes. To properly manage corporate risk, attorneys must advise their clients on the legal ramifications of storing more data. One of these ramifications is certainly increased review costs. With more data to review, it may behoove attorneys to assess the cost-benefit of testing out predictive coding technology to help minimize costs. Counsel used to reference ESI by the equivalent in number of pages - now they discuss terabytes. Page 4

11 Beyond predictive coding, attorneys can manage increased data volumes by culling data sets before attorney review and SURVEY QUESTION: The area where counsel need the most improvement is: 27 % Applying the principles of cooperation and proportionality 14 % Rule 26(f) conferences 9 % Other 5 % Document review effectiveness/efficiency 45 % ESI preservation practices Incorporating sound data preservation practices and effectively applying cooperation and proportionality principles will help attorneys resolve e-discovery disputes faster and with minimized costs. But judges are still seeing attorneys resort to old, traditional adversarial strategies. Too often parties still resort to over-broad requests on the one hand and reluctance to disclose what relevant electronic data is available on the other, said one judge. Another judge stated, Too much time and money is wasted fighting about issues that should be resolved cooperatively. I think better execution of these principles would go a long way to minimizing or resolving the other deficiencies suggested in the question. Page 5

12 ...by leveraging the much underutilized FRE 502(d) rule. SURVEY QUESTION A: The biggest area where I think parties can cut costs in e-discovery is: SURVEY QUESTION B: What is the most underutilized FRCP e-discovery rule used in your courtroom? 50 % (FRE 502(d)) - Waiver agreement 45 % Privilege waiver (FRE 502(d)) 32 % Rule 26(f) - Meet & confer 23 % Reasonable cooperate with opponents to define scope 18 % Other 9 % Search or doc review technology (predictive coding) 5 % Information governance policies 0 % Preservation of data 14 % Rule 26(b)(2)(C) - Proportionality principle 4 % Rule 26(g) - Reasonable inquiry to completeness of discovery 0 % Other FRE 502(d) enables a federal court [to] order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court in which event the disclosure is also not a waiver in any other federal or state proceeding. Not only will this dissolve risk of having any inadvertently produced privileged information used against you, it will ensure that if privileged material is accidentally produced, no lengthy briefs or motions will need to be filed to get the material returned. As noted earlier, being proactive and planning are key to being successful and competent in e-discovery. Entering into a FRE 502(d) agreement with your opponent is a great way to save time and minimize privilege review costs. [Parties] can reduce [the] need for expensive attorney s eyes only review, although not eliminate it entirely said one judge of FRE 502(d) agreements. The problem, as one judge put it, No one ever raises it. Ever. No one ever raises it [FRE 502(d)]. Ever. Page 6

13 But even with these tips, flexibility is required for managing new technology trends and SURVEY QUESTION: Which technology trend will have the biggest effect on e-discovery over the next two years? 33 % Social Media 24 % Mobile Devices 14 % Other 29 % Cloud Storage Attorneys must be aware that all emerging technology platforms are just like ; if they hold relevant evidence you are are accountable for preserving the data. For several years, BYOD was being treated like s around the 1990s, i.e., I won t ask for yours if you don t ask for mine. That honeymoon ended and I sense it is ending for mobile devices as well, since that is how many of us communicate most of the time, and because unique (and uniquely probative) data may reside there, in the form of IMs, etc, explained one judge about the changing preservation landscape. BYOD and mobility will create more preservation problems. Page 7

14 ...understanding the pending Federal Rules of Civil Procedure (FRCP) e-discovery amendments is essential for building e-discovery competency. SURVEY QUESTION: Upcoming amendments to the FRCP will help solve many problems that currently occur in e-discovery today. 43 % Completely agree Somewhat agree 14 % 14 % 24 % Neither agree or disagree Don t agree Don t know Other 5 % 0 % According to most judges and e-discovery attorneys the e-discovery amendments are as good as passed. But will these FRCP amendments change anything? Surprisingly, many judges were a little skeptical. One judge said, Until there is a fundamental shift in the paradigm concerning e-discovery awareness, and I do not think we are there yet, rules will not solve all the problems. Another judge was a little more optimistic stating, 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. 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. Page 8

15 If the FRCP e-discovery amendments pass, Rule 26(b)(1) will likely have the biggest impact. SURVEY QUESTION: What FRCP e-discovery amendment will have the biggest effects on e-discovery practices? 82 % Rule 26(b)(1) 0 % Rule 1 18 % Rule 37(e) 0 % Other Rather than trying to fight essentially hopeless cost-shifting battles, proposed changes to Rule 26(b)(1) attempt to reward attorneys who take a more proactive approach and address proportionality from strategic and technological perspectives moving forward. But as noted on the previous page, judges are taking a wait and see approach on the effects of these amendments. Moving proportionality into the definition of discoverable evidence may increase the likelihood that parties will focus on proportionality, but it may do so at the expense of transparency if producing parties unilaterally withhold information on proportionality grounds, perhaps without alerting the adversary, said one judge. Rule 26(b)(1) will have the biggest impact because proportionality impacts more of what we do. Page 9

16 As the survey results show, disruptive change is needed for attorneys to become become e-discovery competent. A silver lining... all the problems identified can be fixed. Below are some final recommendations and pieces of advice from the judges on how attorneys can improve. 1. GET SMARTER AND EDUCATE YOURSELF ON E-DISCOVERY ISSUES. I believe counsel must focus on the actual claims and defenses in the case, and develop a discovery plan that promotes efficiency and cost-effectiveness. Lawyers (and judges) must understand that a one-size-fits-all approach to e-discovery is simply impractical in an ESI environment. More creativity and strategic thinking is required. 2. IF YOU AREN T E-DISCOVERY COMPETENT, FIND SOMEONE WHO IS. Become competent in the field or associate with a lawyer who has expertise in ediscovery. 3. COOPERATE WITH THE OPPOSING PARTY. Cooperate and confer! And since mistakes will be made in the area of document review, get a 502(d) order in every case. Page 10

17 LEARN MORE ABOUT EXTERRO S E-DISCOVERY SOFTWARE: or call EXTERRO About Exterro Exterro, Inc. is the preferred provider of software specifically designed for in-house legal and IT teams at global 2000 organizations. Positioned as a leader in Gartner s 2014 Magic Quadrant for E-Discovery Software, the company s growth is fueled by a high demand for our enterprise-class solution that delivers process automation across the full EDRM spectrum. Built on an open architecture platform, Exterro integrates with existing IT, HR and EDRM systems to deliver complete visibility into all critical data, as well as the flexibility to scale beyond e-discovery to encompass larger legal, compliance and information governance initiatives. For more information, visit Copyright 2015 Exterro, Inc. ID# EB // exterro.com // info@exterro.com // +1 (503)