Federal Judges Think New Rules Have Changed Culture, But More Work Remains

By Tera Brostoff

This year’s Annual Federal Judges Survey, from eDiscovery software provider Exterro, offers some optimism on the eDiscovery competency of attorneys and judges, but indicates there is still more work to be done.

Twenty-two federal judges from across the United States were asked to respond to questions regarding the eDiscovery competency of the bar and bench, as well as the effect of the amended Federal Rules of Civil Procedure on eDiscovery litigation and disputes.

Improvements Noted

The judges questioned indicated that attorneys have work to do in order to “possess knowledge required to effectively counsel clients on eDiscovery matters.” None of those surveyed responded that the bar was up to snuff in terms of their eDiscovery know-how, although 77 percent of the respondents felt that competency had improved since last year.

The biggest hangup in eDiscovery appears to be cooperation, which many of the judges felt could help resolve eDiscovery disputes.

Proportionality and Cooperation

Magistrate Judge Andrew J. Peck, of the Southern District of New York, spoke with Bloomberg BNA Jan. 24 about the results. He was one of the federal judges who participated in the survey, and is known for his championing of technology-assisted review and his opinions in the eDiscovery arena.

Judge Peck explained that the changes to the Rules stress proportionality and cooperation, as indicated by amendments to Rule 1, Rule 26 and reference to the changes in U.S. Chief Justice John Robert’s 2016 year-end report.

“There are now more discovery opinions mentioning proportionality in the last year than there were in the last 20 years before,” Judge Peck said. “Although the 26(f) conference, in my view, is certainly an important sub-component of that.”

According to Judge Peck, the 26(f) conference is the “starting point” for proportionality.

Federal Bench Doing OK

As for their self-assessment, the federal judges overwhelmingly reported that the bench had a “good” or “OK” competency in eDiscovery.

Retired Magistrate Judge John Facciola weighed in on the bench’s competency. Facciola has authored many opinions on eDiscovery, with a specific focus on the issue of search and seizure of e-mail.

“The consequences for counsel are obvious …They are facing a bench that knows what it is doing and appreciates how the technology can render the discovery process cheaper and more efficient,” Facciola said in the survey report. “For example, counsel, either advancing or resisting a claim of burdensomeness, had better be ready to make a specific showing of how the technology works and how it supports her argument.”

According to Facciola, “the days of outlandish claims of costs, pulled from the sky, are over.”

Improving Competency

So how can attorneys gain more competency when facing a bench that is steadily acquiring eDiscovery knowledge? According to the report, judges agree with Judge Peck’s assessment that cooperating and applying proportionality offer the greatest potential for improving the process.

In fact, while judges last year believed Rule 26(f) conferences were most in need of improvement, cooperation and proportionality skyrocketed this year as the most important areas in which attorneys could do better.

37(e) Takes a Step Back

In 2016, the judges were split on whether 37(e) or 26(b)(1) had the greater effect on eDiscovery. This year, 59 percent of respondents think it’s 26(b)(1).

The answer could be quite simple as to why 26(b)(1) matters most.

“While the sanctions cases get the big headlines, they really are a very small percentage of the cases we face, while the scope of discovery is relevant in every single case,” Judge Peck said.

In general, the new Rules appear to be working, according to the report. Eighty-two percent of the judges believe new FRCP rules have helped solve many current eDiscovery problems. Judge Peck had a slightly less rosy view.

“If the lawyers read and followed the rules, it would solve 82 or more percent of the problems,” he said. “The changes are designed to do that, but the fact that lawyers aren’t getting with the program is still a problem.”

More Work to Be Done

Judge Peck shared the specific example of the amendment to Rule 34. The change to the rule says essentially says that responses to document requests must be specific, and that boilerplate objections are clearly prohibited.

“Rule 34 and its advisory committee notes were very clearly amended to say you can no longer provide these type of responses,” Judge Peck said. “Nevertheless, every day that’s what I still see in the response.”

Judge Peck said that if he’s “feeling feisty” he might ask attorneys in his courtroom to tell him what the new Rule 34 says.

“Generally the reaction is, ‘that was amended? Why didn’t someone tell me?,’” Judge Peck said. “That is still a problem.”

To contact the reporter on this story: Tera Brostoff in Washington at tbrostoff@bna.com

To contact the editor responsible for this story: Carol Eoannou at ceoannou@bna.com

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