This is the third 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 mine.
Part 1 looked at responses to the first survey question, which was about failure to comply with Federal e-discovery rules. Part 2 focused on how often and why judges had to take affirmative action in cases to address e-discovery problems
This article examines what role the judges think they should play in the e-discovery process.
The question
Judges were asked, “What role should judges play in the e-discovery process?” They were directed to choose any of three options: “Active Case Manager”, “Case Manager”, or “No Role”.
Three key takeaways
- Unless otherwise indicated, lawyers rather than judges should manage the e-discovery process. Judges should step in only as needed.
- When judges do step in, they should intervene only as much as is needed and only for as long as is needed.
- There will be, however, cases where a judge will need to intervene early, taking an active role in the e-discovery process so as to set a case moving in the right direction. Once that happens, the judge should return responsibility for managing the e-discovery process to counsel.
The responses
Most judges answered this question (243 out of 251 responding judges). Three quarters of respondents (76%) said judges should play some role in the e-discovery process. Over half (53%) thought the appropriate role was “Case Manager”. One in eleven (9%) chose both “Case Manager” and “Active Case Manager”. About one seventh (15%) selected “Active Case Manager”.
The position respondents hold (district court versus magistrate judge) and the number of years they have served as judges (ranging from five years or less to 21 years or more) did not affect the results in a meaningful way.
Comments
The judges’ comments provide helpful nuance.
A few judges thought management of the e-discovery process should rest with the lawyers and should be taken over by members of the judiciary only as a last resort.
Most judges fell in the large middle. They said that generally management of the e-discovery process should be handled by counsel. Courts should intervene, taking a more active role, if issues arise that the parties do not seem able to resolve. When courts intervene, the degree of intervention should vary depending on the particular circumstances of individual matters.
A few judges wrote that courts should be proactive from the beginning, taking an active role early on so as to get matters moving in the right direction.
Two cautions were offered. One respondent noted that judges will need to take an active role until lawyers get more sophisticated: “There will come a time, after clients accept the value of cooperating with the adversary, that there will be fewer disputes regarding court intervention. But we remain mostly in an environment where appearing tough trumps common sense and cost.”
A second judge remarked that courts should avoid taking too active a role: “There’s a fine line between active case management and hyperactive case management. I strive for the former but know that I can stray into the latter on occasion.”
Parties should take the lead role in resolving their issues |
| “Ideally parties should be required to make a real effort to resolve issues on their own. Judicial resources should not be expended on resolving discovery disputes until the parties have first made a substantial effort on their own.” |
| “Lawyers are charged under the Rules with conducting discovery in an open and expeditious fashion and to act in good faith in resolving the discovery disputes that inevitably arise. As a last resort, I am always happy to intervene and get things back on the right track.” |
Judges should get involved only if there is a need |
| “Court should actively inquire and offer services of the court if the parties anticipate problems. Usually counsel is aware of any barriers to e-discovery and are working on them in anticipation of the joint initial pre-trial and discovery scheduling conference with the trial court.” |
| “We do not have the luxury of proactive involvement but should get involved when a problem has been fully vetted and remains unresolved.” |
| “I don’t want to monitor discovery and intervene before the parties even have a problem, but I do frequently check in with the parties to make sure they’re moving forward, to give them some directional guidance if asked, and to make sure they meet and confer over any disputes is not just dragging on and eating up the schedule.” |
| “When the parties cannot resolve their discovery disputes, the court should promptly address the issues.” |
| “The caveat is that the parties are in the best position to keep the ball moving forward, but the Court should be readily accessible when needed to act quickly. Towards that end, I make it clear to the parties that if they cannot work through it, they can raise their dispute by short letter so that I can act on it quickly, hold a telephone conference or hearing if necessary, or ask for more briefing if I think I need it.” |
| “I do not think I should actively manage the case, if counsel is capable of handling issues themselves. Frankly, I don’t have time to be an active case manager in every case. If a case becomes a problem – i.e., if the parties are constantly bringing issues to me — then I will bring in counsel on a weekly basis to make sure the problems are raised and resolved in a timely fashion, but I usually find that a few weeks of that results in counsel cooperating with one another more efficiently and effectively.” |
| “I do not get involved in managing e-discovery unless one or more of the parties demonstrate that they cannot be relied upon to cooperate/comply.” |
| “I monitor and intervene early when I can tell by their case management report that they haven’t done what they’re supposed to at the Rule 26(f) cf and/or when I get a boilerplate report with no particulars and the case is clearly one in which ESI will be an issue. On routine repetitive type (usually diversity) cases like auto accidents, UM/UIM and slip and falls I promptly address discovery issues as they arise.” |
| “The active case manager can be reserved for those cases that will clearly need attention based on the subject matter, voluminous discovery, adverse positions, etc. Not all cases require an inordinate amount of a judge’s time.” |
| “While the parties should resolve problems themselves, if the case seems likely to breed discovery problems, I think it is helpful to be somewhat proactive in making sure problems are not festering. In a run-of-the-mill case, I think the judge should have no role unless there is an issue that the parties seek help resolving.” |
| “During initial conferences, lawyers are queried about discovery but often have not really done their homework. I make myself available within a day or two of receiving a letter about any discovery issue. Some parties never come to court because their lawyers understand what is expected and comply. Others think it is their job to delay production and drag out the process. I repeatedly see those lawyers every month.” |
Judges should be active at the beginning of a case, then they can back off or intervene only as needed |
| “After a Pretrial conference and entry of CMSO, the court’s role should be limited.” |
| “If the parties know that I will promptly resolve disputes on reasonable terms, they usually resolve most of them on their own. Completely hands-off approaches leave the parties to a Wild West mentality and bad things tend to happen. Too much intervention risks generating issues that might not arise between the parties themselves.” |
| “Try to get in early on case management when it becomes apparent the parties are struggling to reach cooperative discovery agreements.” |
| “During initial conferences, lawyers are queried about discovery but often have not really done their homework. I make myself available within a day or two of receiving a letter about any discovery issue. Some parties never come to court because their lawyers understand what is expected and comply. Others think it is their job to delay production and drag out the process. I repeatedly see those lawyers every month.” |
Judges need to be proactive from the beginning |
| “My view is that all discovery should be supervised and directed in order to reduce time and cost that necessarily accompanies an adversary approach.” |
| “I think it is important to be proactive, to enforce the rules, and to get counsel to play nice during the discovery process. It is much easier to deal with a discovery problem at the outset than to let it fester and erupt on the eve of the discovery cut-off date.” |
The full set of comments is available at the DUKE/EDRM site.
Survey demographics
Roles
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 retired.
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.
Named an “E-Discovery Trailblazer” by The American Lawyer, George has assisted corporate, law firm, and government clients with all facets of electronic discovery, including information governance, domestically and globally. He served clients in a variety of industries including pharmaceutical, energy, retail, banking and technology, among others. As a renowned industry thought leader, he has authored more than 50 articles and spoken at more than 200 engagements across the world on a variety of e-discovery topics. His extensive knowledge has also been utilized more than 20 times to provide expert testimony.
Co-founder of the Electronic Discovery Reference Model (EDRM), a framework that outlines the standards for the recovery and discovery of digital data, and the Information Governance Reference Model (IGRM), a similar framework specific to information management, George is skilled at developing and implementing electronic discovery strategies and managing electronic discovery processes.