courtroom technology gavel

Here's a hypothetical scenario: Your company just got sued in Texas because a former employee claims they were improperly terminated. At issue is a series of emails, and you head down to the state courthouse for an initial meeting with the judge.

Now, what do you need to know to start discussing e-discovery? A lot, right? What the judge needs to know, however, may differ.

Through his 30 years of being an e-discovery expert, BDO Consulting's George Socha said the judge's job hasn't changed much, even if technology has. “From the judge's perspective,” he explained about a recent case, “it was about making sure that he laid down the ground rules for what was going to happen in his courtroom, and how the lawyers were going to handle the case as they appeared before him. … When it came to the evidentiary hearing itself, he's not choosing who testifies, he's not even deciding really what to testify about. His job is to move the hearing forward and get from the party their best shot at the information.”

“That's what judges do,” he further added. “It happens to be about electronic discovery, rather than about a warning label on a product, or an elite science expert, or the amount of damages being fought. It's different subject matter, but the process judges follow is largely the same.”

But judges aren't enthused with the e-discovery competency of the attorneys who appear before them. Exterro Inc.'s 2018 Federal Judges Survey Report was revealed in full today, with participation in the reporting from BDO Consulting and EDRM at Duke University School of Law. The survey of 30 federal judges revealed that many continue to see a lack of e-discovery awareness in courts—only 23 percent strongly agreed or somewhat agreed that “the typical attorney possesses the legal and technical subject matter knowledge required to effectively counsel clients on e-discovery matters,” while 47 percent somewhat disagreed (none strongly disagreed).

Furthermore, while 97 percent said the legal community is better educated on e-discovery as compared to five years ago, 93 percent also viewed year-over-year e-discovery progress as “the same” or “slightly better.” This indicates that while e-discovery may be taking hold for some, it has not been the revolutionary force that some predicted even a decade ago.

“It is distressing to start a new year with old, bad news—that lawyers still do not get it, and the chasm between the few who get it and the many who do not is still the size of the Grand Canyon,” retired U.S. Magistrate Judge John Facciola of the District of Columbia wrote in the survey report.

Why exactly is there a disconnect between what's expected of attorneys and their actual level of e-discovery competency? Judges themselves seem to be picking it up just fine—63 percent of those surveyed rated their judicial peers with “strong” or “good” e-discovery competency, and just one of 30 called it “poor.”

The easy answer might be, “because they don't know how important it is.” In the survey, 60 percent of judges cited a lack of cooperation as the most frequent cause of e-discovery mistakes. Further, the judges looked at attorney mindsets as the main way to improve cooperation, with 44 percent urging a strong adherence to the Federal Rules of Civil Procedure (FRCP) and 33 percent wanting active participation at Rule 26(f) conferences.

But herein lies a potential problem: While judges often apply a similar mindset to e-discovery as other issues, as Socha described, attorneys often have to switch mindsets to effectively conduct e-discovery. And many common attorney skills are not translatable.

“On the lawyer's side, figuring out what electronic information you can try to find, trying to get that information, and figuring out how to make it usable and work with it, is very different from trying to deal with information that is on paper, and very different from trying to deal with information that people say,” Socha explained. “By and large, it's very different approaches, very different methodology, and very different objectives. You can't say, 'Well, I know how to ask people questions. I know how to pull a story out a person.' Sure. That doesn't mean you know what electronic information to go after, and it certainly doesn't mean you know how to get the information you're trying to obtain.”

Mike Hamilton, director of marketing programs at Exterro, told Legaltech News that the amount of background research and understanding required to conduct effective e-discovery may surprise some attorneys new to the space, especially when it comes to understanding the technology itself.

“They need to know their clients' IT infrastructure to really understand e-discovery implications. If I am outside counsel, and I don't know anything about my clients' IT infrastructure, then I'm not going to know what's the burden of preserving text messages,” he said. “Maybe there's no BYOD policy, or maybe they're all company-issued cell phones so it's a lot easier to preserve, or maybe they're using an app. Knowing those ins and outs of your clients' IT infrastructure is really going to affect what the burden is for you in complying with e-discovery requests from your opponent.”

With that in mind, e-discovery competency might be easier said than done, especially for lawyers that aren't as tech savvy. But that doesn't mean that it's any less important. Facciola noted that 98 percent of all communications today are digital, and 46 percent of judges surveyed recommended mandatory e-discovery education.

“There's so much more of it than there ever was on paper, and it's so much more reliable than anyone's memory,” Socha added. “But, learning how to do all that is going to take time and effort, and it isn't much of why anybody went to law school.”

CLEs, seminars and courses are a good way to start, the judges suggested—73 percent recommended them to obtain e-discovery information, far over the second-highest source (academic sources, 23 percent).

But before that, what's important, the judiciary said, is recognizing e-discovery's importance. And even if there is in fact a gap between how judges and attorneys approach e-discovery, that doesn't make tackling this homework less necessary, especially in light of the 2015 FRCP amendments.

Hamilton said, “What they're seeing is that the new Rules [for] attorneys that are proactive and are intelligent about how they leverage the Rules in their e-discovery practices, they're employing some tactics that are reducing costs for their clients and keeping them defensible for their clients. They're seeing it happen in their courtrooms; they're just not seeing it across the board.”