If you have not heard it before, you heard it at Legalweek New York 2018: There's no room for gamesmanship in e-discovery—now or in the future. As in years past, Day 2 of the legal technology conference kicked off with an esteemed judiciary panel, moderated by Patrick Oot of Shook, Hardy & Bacon.

The judges, steered by Oot, walked through theoretical exercises under the theme of “ESI today; ESI tomorrow.” However, despite changing technology and emerging data sources, the judges reiterated foundational principles that many of the approximately 400 attendees had likely heard before: cooperation, reasonableness and preparation.

Inadvertent Disclosure

Judge Andrew Peck of the Southern District of New York, in his last Legaltech on the bench, tackled the first hypothetical focusing on one of his ardent topics, inadvertent disclosure.

He questioned whether he should rein in his zeal for the topic, stating, “OK, Peck, stop beating a dead horse. They have heard you on getting a 502(d) order.” But, his advice seems to be falling on deaf ears, noting that litigating parties proffer myriad excuses to avoid a clawback agreement.

Judge Joy Flowers Conti of the Western District of Pennsylvania explained that in her court, she has minimal issues with inadvertent disclosure, given local court rules and a model 502(d) order.

Inadvertent disclosure also raises ethical concerns; however, professional responsibility rules vary significantly from state to state. The panel reviewed ethics rules from New York and Pennsylvania, which require a party to notify the opposing side in an inadvertent disclosure situation, and compared those ethics rules to Texas where there is no duty to notify.

Judge Xavier Rodriguez of the Western District of Texas remarked that there are a couple Texas supreme court opinions, however, stating that it is laudable to notify an opposing party when privileged materials slip through the cracks.

Peck had the last word on the issue, pleading with parties to seek clawback agreements, stating, “502(d) is a get out of jail free card. If something slips through, you get it back automatically. It's a pretty easy thing to do.” Finally, Peck commented on his upcoming February retirement, indicating he would stay active in e-discovery circles.

ESI Protocols

The next hypothetical concentrated on attaining an ESI protocol in discovery and the difficulties of working with noncooperative opposing counsel. Judge Conti said, “In complex matters, with large volumes of data, I get the parties together early on and set the expectation that the parties must meet and confer about an ESI. I expect an ESI protocol.”

However, if parties have trouble reaching agreement on such things as keywords, use of predictive coding, the scope of the custodian list or production timeframes, there was some disagreement on the appropriate time to engage the bench.

Judge William Matthewman of the Southern District of Florida, stated, “We expect professionalism and cooperation in discovery, but in situations where that is not possible, I would prefer you bring it to me earlier than later.”

Rodriguez, contrarily, felt that parties should be careful about involving the judge too early. “Parties really need to ask themselves at what point do you inject the judge into your fight,” he opined.

On the topic of cooperation, an audience member asked the jurists to describe the characteristics of a truly uncooperative lawyer versus an attorney that is merely advocating zealously for his or her client. The panel portrayed that truly uncooperative lawyers can't explain themselves. They overuse buzz words. They stand up and say “but, judge, it is burdensome” over and over again. Also, all the judges expressed the importance of presenting the court with data, facts and thoughtful alternatives.

Further, Matthewman reiterated the significance of knowing the current language in the Federal Rules of Civil Procedure, stating, “How about when a document refers to an old version of Rule 26(b)(1), and we are still seeing that by the way. You don't want to be one of those lawyers.”

Most importantly, parties need to be aware of local court rules or standing orders regarding discovery. Matthewman stated, “In South Florida, most of the judges have a standing order on discovery. It's very important to know your district judge and magistrate judge. For example, I require parties before me to confer in person or by telephone before they file a discovery motion with my court.”

Conti agreed, “It's important to know the techniques we have as judges to keep discovery moving, because delay benefits no one.”

Emerging ESI Sources

The panel closed with a final set of hypotheticals looking at old and new sources of ESI, explaining the tension across circuits on whether a party has a legal right to obtain data versus the mere practical ability to obtain data. Oot highlighted the work of the Sedona Conference in clarifying these two standards. Specifically relating to data on personally owned devices, Matthewman stated, “It's important that employers have clear agreements with employees on accessibility, if they allow employees to bring their devices to work.” Peck concurred, adding that the situation is obfuscated when the data or device is located outside the U.S.

Michele C.S. Lange is a freelance writer and attorney based in Minneapolis.  She has more than 15 years of experience in the e-discovery industry and can be reached at [email protected].