eDiscovery Law & Practice: 30 Federal Judges Weigh In
There’s a reason judges’ panels are typically one of the last events at most CLE programs. As brilliant as the lawyers and academics are, what participants often really want to know is what the judges think about issues.
And so, for the past several years I’ve enjoyed receiving and reviewing the Annual Federal Judges Survey conducted by Exterro (available here). The survey gathered and analyzed the opinions of 30 federal judges, likely a testament to Exterro’s partnership this year with EDRM/Duke Law and George Socha, co-founder of the EDRM and now a Managing Director at BDO.
This year’s survey contains three parts, with both quantitative and qualitative analyses covering eDiscovery Proficiency, Improving eDiscovery Activities, and the Rules of eDiscovery. The entire survey is worth reviewing – especially the expert analysis in each section provided by eight sitting and retired federal judges. But the key insights (appearing on page four) and conclusions (appearing on page 34) nicely recap the main findings. As stated in the conclusion:
- “Attorneys are making progress, but skill levels are unequal and still inadequate.”
- “Judges can and will hold attorneys accountable for eDiscovery mistakes.”
- “Most eDiscovery problems stem from poor cooperation, with insufficient education and poor policies and procedures far behind in second place.”
Improving eDiscovery Practices
- “More eDiscovery education, whether CLEs or in law school, is needed.”
- “The best way to improve eDiscovery practices and outcomes is to cooperate.”
- “Technology can go a long way to reduce costs and increase defensibility.”
Rules of eDiscovery
- “Judges will manage cases actively to achieve resolutions that are ‘just, speedy, and inexpensive.’”
- “Judges have less tolerance for gamesmanship and ‘gotcha’ tactics.”
- “Attorneys must learn the Rules and embrace them to achieve the best results.”
One important theme weaves its way through all three sections – the judicial focus on the value of appropriate cooperation as a way to avoid problems, improve quality and outcomes, and eliminate gamesmanship. It’s one of the reasons Level 2 Legal is a proud corporate sponsor of The Sedona Conference©, and why I am personally deeply invested in the groundbreaking cooperation initiatives of the Conference, especially including the annual eDiscovery Negotiation Training Program.
Of course, cooperation does not mean capitulation. It’s also an art as much as it involves technical competence. Please contact us to discuss – or better yet, consider joining us at the next eDNT program. You’ll be glad you did.