Exterro recently published its 3rd Annual Federal Judges Survey, an outstanding piece of work, in my opinion. Congratulations to the authors of the work, and thanks to the contributing judges and industry experts.
The survey summarizes its findings with a focus on competency, cooperation, and cures: (1) While there has been some progress, there is still considerable room for improvement by attorneys in the realm of electronic discovery, so they can more effectively counsel their clients on these matters. (2) Judges continue to emphasize the need for earlier and more effective communication and cooperation between the parties during the early stages of e-discovery; seem more willing to support suggestions by the parties of alternative approaches to addressing proportionality concerns. (3) Judges, for the most part, feel that tools introduced by the recent amendments to the Federal Rules of Civil Procedure (FRCP) have allowed judges to be proactive in managing e-discovery cases, solving many of the problems previously dogging these cases.
The Survey is optimistic in its conclusion that e-discovery competency is getting better compared to a year ago, based on a 29% increase in a “neutral” vote by judges to a question about the typical attorney’s mastery of legal and technical e-discovery information, and that 77% of the judges thought e-discovery competency was “slightly better” than a year ago. However, I think the picture presented by the Survey is alarming.
Across three years of the Survey, almost half of the judges polled are very clear that the typical attorney is not competent. None have strongly agreed that competency exists. Since the choices of “competent” and “not competent” are like two sides of a coin, let’s assume that judges, if truly pressed, would split evenly on the choice, with the result that over 60% of the judges are still seeing incompetence. In addition, no judge agreed that competency was much better. Over 20% thought things were the same as last year, and 77% thought things were “slightly better.” As an industry, I would hope that we would seek a higher standard than “slightly better.” This surprises me, to an extent, given that we have ongoing efforts by organizations like the Legal Technology Professionals Institute, ACEDS, the Sedona Conference, the Masters Conference, EDI, EDRM, and others, to educate the industry. While I don’t disagree with the Survey results that things are improving, now seems like a good time to pick up the pace.
One very hopeful finding of the Survey is that there has been marked progress in the level of e-discovery competency among the federal judiciary. Over 85% of the federal judges clock in with “Ok” or better competency. The aging of the bench has been the cause of some concern among people that I have talked to, given the retirement or pending retirement of many of the e-discovery luminaries—Judges Scheindlin, Facciola, Maas, and others, but the Survey results indicate that retiring judges are leaving us in good hands.
As a consultant specializing in process and change management prior to becoming a lawyer, I recognize that change can occur on many levels, and that each type of change brings its own challenges. In a simplified analysis, three changes we are witnessing in e-discovery are changes to tools, changes to process, and, ultimately, changes to culture.
The easiest of the three, changing tools, may be seen when lawyers adopt new software. The software simply automates a process which existed previously—legal hold software is a great example. Typically making existing work easier to do, removing pain points, and freeing up time for other work does not generate much organizational resistance. The challenges primarily center on educating a staff in the use of the tool.
Changes to process, however, will bring on bigger challenges. Process change involves doing things in a different way, perhaps with different skillsets. It may result in elimination of jobs, which have become redundant. Effectively implementing workflow software to improve legal processes and adopt industry “best practices” is an example of process change. Organizational efforts for this will require planning, good communication, intergroup coordination, and careful monitoring, in addition to the educational requirements of a tool change.
The hardest change to adopt is cultural. Cultural change involves not only adopting tools and changes to the way things are done, it also requires embracing both the changes and the results of changes. In effect, cultural change includes actually seeing who you are or what you do in a different light.
Bringing this back to the Survey, I think that cooperation involves a cultural shift for attorneys. Lawyers are competitive. We compete to get into law school; we compete to get the best grades; we compete to get the best jobs. And everything after law school is about winning. Competition is in our blood. And cooperation seems a polar opposite. No one ever impressed a client by telling them how well you cooperate with opposing parties. I expect that universal adoption of a cooperative approach to e-discovery will take time, and require persistence by those who have already embraced the concept. Survey results show that 77% of the time, a lack of cooperation between the parties is responsible for e-discovery problems. So it is not a surprise that 77% of the judges indicated that applying the principles of cooperation (and proportionality) would be the area offering the most potential for improvement among counsel.
Fortunately, some powerful factors are pushing things in the right direction. We have a judiciary that “gets” e-discovery. We have changes to the Federal Rules of Civil Procedure that reduce the benefits of “gaming” e-discovery. And we have a rising sophistication and awareness by corporate clients about the costs associated with unfettered e-discovery. Clients expect their counsel to take affirmative steps to minimize costs—and are taking steps to ensure they get this result. Collectively, these pressures are forcing attorneys to get with the program.
Changes to the Rules
The 2015 changes to the Federal Rules of Civil Procedure have been in place for well over a year now. While there have been a number of cases applying the rules, it is too early to call the game in favor of the rules “working.” Although 82% of the judges responded “True” to the question that the Rules changes have helped to solve many problems that currently plague e-discovery, their commentary, included in the Survey, provides greater insight. These indicate that the rules are a good start, but only time will tell if they have solved significant issues. On the other hand, judges are comfortable with asserting that the Rules changes did help both by providing direction to practitioners and by helping to flush out issues earlier in cases.
Actual determination as to whether the changes are working will come after practitioners get familiar with, and apply the new rules. To some degree this is not yet happening. For example, most of the judges indicate that parties are not taking advantage of the option to send Rule 34 requests in advance of the Rule 26(f) conference. And cases make it clear that parties are still trying to figure out the proportionality workings of new Rule 26(b)(1), although judges have singled out that changes to this rule have had the biggest impact on e-discovery practices. Questions remain about sanctions, in spite of the changes to rule 37(e). Parties acting badly in discovery have found that judges will find a way to take corrective action. As pointed out in the Survey document, the judges pointed out other ambiguities remaining in the rules, which will require judicial interpretation to clarify.
This years’ effort in the Survey surpassed my expectations. The questions posed were excellent, and I particularly appreciated the commentary from industry experts. However, there is always room for improvement. While the title indicates this is a survey of “federal” judges, I think it is time to include representation from the state benches. State judges face the same issues as federal judges in e-discovery. While there will be individual differences from state to state, most states follow the federal rules to some degree. In addition, courts in some states have taken a lead role in devising rules to manage their cases. I think including judges from some of these courts would be beneficial to those of us interested in developments in e-discovery, and who follow surveys of this sort.