Moderator: Patrick Oot, Partner, Shook, Hardy & Bacon LLP. Speakers: Hon. Kimberly C. Priest Johnson, U.S. Magistrate Judge, U.S. District Court Eastern District of Texas, Hon. Elizabeth D. Laporte, Magistrate Judge, U.S. District Court for the Northern District of California, Hon. Andrew J. Peck, US Magistrate Judge (ret.), Senior Counsel, DLA Piper, Hon. Joy Conti, Chief District Judge, U.S. District Court, Western District of Pennsylvania. Photo: Carmen Natale/ALM.

The second day of Legalweek 2019 closed out with a panel of current and retired federal judges discussing everything from the first time they became acquainted with e-discovery to what amendments to the 2015 Federal Rules of Civil Procedure are working.

Panelists included Andrew J. Peck, retired U.S. magistrate judge, who is currently senior counsel at DLA Piper; Chief Judge Joy Conti of the U.S. District Court for the Western District of Pennsylvania; Magistrate Judge Elizabeth Laporte of the Northern District of California; and Magistrate Judge Kimberly Priest Johnson of the Eastern District of Texas. Patrick Oot, partner at Shook, Hardy & Bacon, moderated the panel.

Here are the highlights from the talk:

 When E-discovery Took Center Stage

The judges on the panel weren't always e-discovery experts. In fact, some can recall a time when they thought e-discovery wouldn't be as big a deal as it is today.

For Peck, that time was shortly after the 2006 discovery amendments to the FRCP, which discussed electronically stored information.

"I think the first tipping point was the 2006 rules amendments," he said, noting that after he talked about the rules at a conference, some took him for an e-discovery expert. But Peck didn't think e-discovery would be a topic he would be talking about for long.

"I thought, 'OK, we are going to have all these nice new rules and therefore give everyone a year to figure it out, then I'll have to go find something else to talk about because everyone will have figured it out.' Obviously we're still talking about."

For Laporte, e-discovery came to light after a 2006 case she managed regarding alleged patent infringement of source code. "I had to write this length opinion dealing with serious sanctions that went through all the many thing that went completely wrong … the word ESI was only mentioned one."

She continued, "Then to my surprise a few weeks later, someone calls me up and says, 'You are just this expert on e-discovery, would you headline our conference.' … and I said, 'What are you talking about?' I didn't realize this would come a buzzword, if not a field."

Things Change, Stay the Same

While e-discovery processes have become better known over the past decade, there is still the persistent problem of attorneys and judges not understanding new sources of ESI.

"In 2005 and even after the 2006 rule change, lawyers were still coming into the court—those of a certain age—and pointing to their grey hair and bald head and saying, 'I'm sorry judge I still don't understand how to deal with emails and ESI,'" Peck recalled.

Now, "I think we are seeing with text messages and some other forms of non-email communication" the same problem, he added. " But we all as lawyers and judges need to learn how to deal with the newer forms of technology, just as we had to learn back in 2005 and 2006 how to deal with email."

But adapting to new data sources may be easier now than it was over a decade ago.  Judge Conti noted that "the big difference today than before is judges are more attune to" new technology and ESI. "Perhaps not every judge, but we have had a lot of judicial education over this."

Still, she noted that it is still difficult for all legal professionals to keep up with the evolution of technology. "It's incredible, the pace of change is so fast in this field it makes it interesting, but it's also very difficult for the partners to keep up, let alone the judges."

The Amendments That Work

Peck and Johnson agreed that changes to FRCP rule 26 instilling proportionality in discovery request has, for the most part, caught on in the legal industry. "No one ever talked about [proportionality] when I was a lawyer; I never thought to make a proportionality argument," Johnson said.

"But I would say a positive thing … is that I don't see boilerplate objections anymore. I think parties realize, if we are going to make these objections [judges] want specifics, how much is this going to cost what is the burden."

Johnson also praised the changes to rule 16 that mandate a meet-and-confer conference, which she believes helped decrease the amount of discovery disputes in her court. "I believe in large part it's because of the specific requirements in conference."