This is the second in a series of posts evaluating the
results of Exterro
and Duke/EDRM’s 2019 survey of Federal district court and magistrate judges
With information from over 250 judges, the survey data offers a rich trove to
looked at responses to the first survey question, which was about failure
to comply with Federal e-discovery rules.
This article, Part 2, focuses on responses to the second
substantive set of questions in the survey, which go to how often and why
judges had to take affirmative action in cases to address e-discovery problems.
Judges were asked, “In
the past 12 months, how often have you had to take affirmative action (e.g.,
require additional conferences either in camera or unsupervised or issue a
warning or sanction) in a case to address an e-discovery problem?
were direct to choose one of five options: “one”, “two”, “three”, “four”, or
“more than five”.
The judges also were asked to comment, “on what basis
” did they have to take affirmative action.
Three key takeaways
- Most responding judges acted affirmatively at
least once in the past 12 months. Only 15% said they had not needed to take any
action. Of district judges, 78% said they acted affirmatively at least once. Magistrate
judges were notably higher at 95%.
- Although responding judges acted affirmatively,
they did not do so often. Seventy-nine percent of responding judges took
affirmative action just 4 times or less in past 12 months. For district judges,
the number was 88%; for magistrate judges, 67%.
- Judges also took affirmative action only in a tiny
percentage of the cases they handled. (Here I need to add the important caveat
that the following percentages are artificially high; more about that below.)
For district court judges, the numbers range between 0.3% and 1.5%. For
magistrate judges, the numbers range between 0.2% and 0.8%.
Placed in context, these numbers suggest that during the
past 12 months responding judges (and Federal trial court judges generally)
rarely felt the need to intervene to address e-discovery problems.
If judges had been given the option to answer “zero” or, in
the case of district judges, “magistrates handle that”, the judges’ comments
clearly indicate that a significant percentage of the judges would have
selected one of those options. For the analyses in this article, I have adjusted
the responses accordingly and am using “magistrate only”, “zero”, “one”, “two”,
“three”, “four”, or “more than five”.
A closer look at responding judges
Just over 250 judges responded to this survey – 139 district
court judges, 110 magistrate judges, and two judges who did not indicate their
roles. The Administrative Office of the U.S. Courts reports
for calendar year 2018 there were 663 authorized district court judgeships.
According to a 2016 paper
prepared for the Federal Bar Association, at that time there were 531 full-time
magistrate judges. Assuming the AO and FBA numbers to be accurate today, we got
responses from approximately 21% of the bench.
||Responding as % of Reported
Most judges acted affirmatively
Ninety two percent of responding judges answered this set of
questions. Of those judges, 15% said that in the past year they had not had to
take any affirmative action to address e-discovery problems.
Compare answers from magistrate and district court judges,
and you see the expected difference between the two groups. Ninety-five percent
of responding magistrate judges said they had taken affirmative action at least
once in the past 12 months. For district court judges the number was lower, at
78%. Two district court judges specially noted that they passed these issues
along to magistrate judges.
|Took Affirmative Action
Overall, judges did not have to act affirmatively often. As
the chart and tables below show, 79% of the judges took affirmative action less
than five times in the past 12 months. For district court judges the number was
88%; for magistrate judges, it was 67%. Only 21% of responding judges took
affirmative action five times or more. District judges were less at 12% and
magistrate judges notably higher at 33%.
|Took Action – All
|Took Action – District Court
|Took Action – Magistrate
But most judges acted affirmatively only rarely
Judges took affirmative action only in a tiny percentage of
the cases they handled, at most just over 1.5% and most likely almost always
far less than that.
The first step
toward arriving at this conclusion is to calculate the average number of cases
handled each year by district court and magistrate court judges. As explained
below, it appears those numbers are somewhere in the range of 336 matters per
year for district court judges and 656 for magistrate judges.
According to Federal
Judicial Caseload Statistics 2018
from the Administrative Office, in the
12-month period ending March 31, 2018 there were 358,563 civil and criminal
matters filed in U.S. district courts. Of those, 277,010 were civil matters. Subtracting
prisoner petitions, there remain 233,045 matters. The Administrative Office
that for calendar year 2018 there are 663 authorized district court judgeships.
Combined those numbers, and it appears that on average district court judges
handle approximately 336 matters a year.
The Administrative Office tells us
that in 2018 magistrate judges handled 348,421 civil matters. According to a 2016 paper
prepared for the Federal Bar Association, at the time there were 531 full-time magistrate judges. Assuming the number of magistrate judges has held steady, then on average magistrate judges handled approximately 656 matters last year.
|Number of matters handled
|Number of judges
|Average number of matters per judge
The second step
is to calculate frequency of affirmative actions, where that frequency is
defined as the number of times in the year a judge took affirmative action
divided by the number of matters a judge handled.
Here is where the above-mentioned caveat comes into play. Because
of the specific wording of our question (“how often have you had to take
affirmative action … in a case”), we do not know from the response whether
judges taking affirmative action more than once did so in the same case or in
two separate cases. For this exercise, however, I need to assume that each time
a judge took an affirmative action, the judge did so in a different matter. I
know this assumption is wrong, as the judges’ indicate otherwise, but I have no
better data to work with. This means that the numbers below overstate, most
likely substantially, the percentage of cases on judges’ dockets where the
judges had to take affirmative action.
Nonetheless, here are the calculations.
|Number of Matters with Affirmative Action Taken
as % of Docket
|No. of Matters with Affirm Action
The implication is clear. Matters in which judges find
themselves having to take affirmative action only account for a tiny part of
the judges’ overall dockets. For district court judges, the numbers range
between 0.3% and 1.5% according the above calculations and should be noticeably
lower. For magistrate judges, the numbers range between 0.2% and 0.8% with the
same cautionary comment.
In addition to being asked how often they took affirmative
action in cases to address e-discovery problems, judges were asked to comment
as to the bases for which they took that action.
DUKE/EDRM organized the comments into seven groups:
- On the basis of misconduct, neglect, or rule
- On the basis of a dispute
- On the basis of communication issues
- To provide guidance
- Regular practice
- On the basis of privilege issues
- Basis unspecified (a catch-all group we won’t go
As in Part 1, I won’t fill out this post with the full set
of comments; those are available on the DUKE/EDRM site
Following, instead, is my distillation of the comments.
On the basis of misconduct, neglect, or rule violation
Most of this group of comments focused on attorneys’ failure
to do something. These included failures to: confer with opponents meaningfully
or even at all; be specific in responses and objections; understand their
client’s data and e-discovery practices; search for data appropriately or
diligently; search the data itself appropriately or diligently; deliver
complete productions; act timely or act at all; comply with court orders; and
understand e-discovery itself or turn to someone who does for assistance.
Many of the comments centered on attorneys’ abuse of the
e-discovery process, such as: making overbroad requests; using boilerplate or
improper objections or responses; engineering inappropriate delay; or refusing
to engage in genuine efforts to confer or to resolve disputes before turning to
On the basis of a dispute
Perhaps the most fundamental dispute leading to judges
taking affirmative action to address e-discovery problems arose when each side
thought it was reasonable and the other side was wrong and neither side seemed
willing to re-assess those positions.
Many disputes leading to judges taking affirmative action
stemmed from counsels’ inability to agree. Areas where they could not (or
preferred not to) come to agreement included: scope and limits of discovery to
be engaged in; initial e-discovery actions to be taken; search terms; deadlines;
and scope of ESI to be produced.
Other disputes came from lawyers taking unilateral action.
One-sided actions include requesting parties asking for too much before trying
to determine what actually might be reasonable, as well as responding parties
producing only what they wanted to without conveying how they had limited their
Some disputes appeared to be born of ignorance, such as
where attorneys over-promised because they did not understand what they are
committing themselves or their clients to do.
Finally, some disputes seemed to be the result of an
apparent desire to have issues remain unresolved: parties refuse to engage in
meaningful communications; stonewall on productions without offering reasonable
alternatives; and demand data for data’s sake rather than to advance the theory
of the case.
On the basis of communication issues
“What we’ve got here
is a failure to communicate.” Too often attorneys didn’t meet, didn’t talk, didn’t
write, didn’t plan. And when they did, too regularly they seemed to be the
proverbial ships passing in the night.
To provide guidance
Some judges felt they had to act affirmatively to so as to give
guidance, especially to inexperienced counsel, for example directing parties to
refine and identify their e-discovery.
Some judges see themselves as pursuing a regular practice of
acting affirmatively, where in their local rules they call for conferences, in
more complex cases require counsel to meet and confer with IT people
participating, and sometimes just bring counsel into the courthouse so the
attorneys can hammer things out on a face-to-face basis.
On the basis of privilege issues
Privilege issues can lead to judges needing to take
affirmative action. Part of this appears to be inherent in the difficulties and
complexities posed by privilege concerns. Part arises from overly aggressive
assertion of privilege.
About the survey
In late 2018, Duke/EDRM
conducted a survey of
Federal judges, the fifth year for Exterro and the second for Duke/EDRM. The
survey contained over 20 groups of questions. More than 250 Federal district
court and magistrate judges responded to the survey.
Exterro and Duke/EDRM published survey results in early
2019. Exterro’s report on the results is available here
compilation of results, including the text of comments from judges responding
to specific questions, is available here
The astute observer will notice that tallies used in this
and subsequent posts differ slightly from those appearing in the Duke/EDRM and
Exterro materials. Generally those differences come from efforts on my part to
reconcile answers to choose-an-option questions with narrative comments
provided by the judges.
Respondents are pretty evenly divided between district court
and magistrate judges. Of the 251 Federal judges responding to the survey, 55%
identified themselves as district court judges and 44% said they are magistrate
judges. Of the district judges, 4% reported that they are chief judges, 6% are retired,
and less than 1% are on senior status. Just over 1% of the magistrate judges
noted that they are chief magistrate judges and less than 1% said they are
Years on the bench
The responding judges are a seasoned group. Overall, 63% of
the judges have been on the bench for at least 11 years; 83% for six years or
more. District court judges have more experience – their largest cohort, at
46%, has been on the job for 21 years or more – while responding magistrate
judges have not served as long – their biggest group, at 33%, clocks in at
between 6 and 10 years. These differences are not surprising as district court
judges have lifetime tenures while magistrate judges are appointed for
renewable eight-year terms.