There remains a debate about the actual impact of the 2015 amendments to the Federal Rules of Civil Procedure (FRCP), but when it comes to e-discovery, the bench is certainly paying attention.

At Exterro's inFusion conference last week, a panel of federal judges (moderated by retired federal Judge Andrew Peck) explained that even three years into the new FRCP paradigm, judges still see easy-to-correct e-discovery errors. In fact, to people inside the e-discovery ecosystem, the lack of knowledge in general legal marketplace could be frightening.

“We wish that more of the people who appear before us could be here listening to the types of things that you're all saying in terms of what's going on behind the scenes,” said Elizabeth Deavers, chief magistrate judge in the Southern District of Ohio. “Because a lot of times, I think, by the time they appear before us, they've lost sight of the things that we're trying to do.”

With that in mind, here are four areas where the judges want to see e-discovery improvement, particularly when it comes to proportionality, objections and more.

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1. Be Specific

About 25 years ago, Peck said, firms would offer general objections to discovery requests, which would always end with something to the effect that they wouldn't turn over documents “unless you put a gun to their head.” These days, that won't fly.

“In many cases, that would mean sanctions,” said U.S. Magistrate Judge William Matthewman of the Southern District of Florida. But even so, he said, “I still get those. I will get five- and six-page general objections, and then the response will be some more specific objections, and then they'll say, 'Notwithstanding all that, none of that is deemed an admission, but we'll produce this.' I just strike all that, that's a complete waste of paper.”

These days, the key is to both be specific and to actually relate to the issue at hand. By doing so, added U.S. District Judge J. Michelle Childs of the District of South Carolina, the judge will be better able to work with you—something that wasn't always possible under the old way of general objections.

“For example, if you wish to say instead that there's a legal conclusion, well, we can test that theory,” she explained. “Or if you wish to say, let's cull it down and have a certain amount of documents, we can say that's fair and reasonable. But when you outright object to everything, it gives us nothing to work with.”

The same issue applies to proportionality as well, Deavers noted. “They can't just say, 'It's too expensive, it's not proportional,' without having an affidavit or something from the vendor saying, 'This is how much it's going to cost.'”

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2. Prove Your Point

The affidavit was a key that many panelists brought up. Matthewman said that commonly, the plaintiff's counsel will view e-discovery as a one-click easy button, while the defense counsel will focus on exorbitant costs. In actuality, though, “Neither of them have an affidavit; neither of them have any facts to rely on. And then they will be so litigious at times, I just wonder if the companies and the in-house counsel know what goes on with outside counsel.”

That's why e-discovery legwork before a meet-and confer is crucial. Childs said, “You have to come prepared. You have to know your clients' documents, speak with the technicians, speak with the custodians, know their data management and storage and retrieval systems and how they're going to produce.”

She added that often, this means educating the judge about the technological facts of the case, in a respectful manner. “We're not going to profess that we are technologists and we understand everything about your client's resources. But you need to be able to articulate that to us so that when there's that argument about burden or expense or things of that nature, what are you actually saying to us? Have you really looked?”

Matthewman agreed, saying that many times, attorneys will come to court unable to answer basic e-discovery questions without first asking to talk to outside IT and e-discovery personnel. In a perfect world, though, “you would hope they've already done that before they come into court on a discovery dispute.”

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3. Know Your Judge

It may seem obvious that different courtrooms have different e-discovery rules, but the judges all said that many times, attorneys simply don't know how a court handles e-discovery problems. Especially when looking to educate judges on the facts of a case, Deavers said, it's important to speak the judge's language.

“In my district, in Columbus anyway, the magistrate judges handle all of the discovery issues,” Deavers said. “If you went up to a district judge in my district, they would say, 'What does proportionality mean?' They would have no clue, as opposed to we have a district judge here [Childs, on the panel] who handles all those.”

Matthewman said he runs into this issue with standing orders, which he noted are “not aspirational; they're meant to be followed.” Ignoring these rules, which can often be found on the judge's website, can get a discovery dispute off on the wrong foot before it even begins.

For example, he explained, “with me, if you file a discovery motion, it can't be more than five pages long, and the response has to be in within five days. And then I review it, and I rule on it or set a hearing. So an attorney will come in, from this big firm, and file a 22-page discovery motion, and we strike it or make them go back and make it five pages. The reason for that is we want to move the process quickly.”

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4. Don't Be Afraid to Cooperate

Finally, even though litigation is an inherently adversarial process, that doesn't mean that cooperation won't be in the best interest of the client. Especially since the FRCP amendments, Deavers said she has seen judges take a more active role in case management, but there's only so much judges can do without attorney cooperation.

This cooperation, she said, “it's the touchstone now. … We really want to be involved more too, but it's a give-and-take.”

This give-and-take means a change in attorney mindset, Matthewman added. In many civil cases, he said “it seems like the discovery process is overtaking the actual litigation. It's like the tail wagging the dog, and I couldn't believe the amount of time, six months, 12 months, 18 months, dedicated to discovery.”

He added, “You can still be a zealous advocate, you can still represent your client very well and be professional and cooperate. Just because you're opponents doesn't mean you have to be hostile.”

This means that the best objections are the ones that have been discussed beforehand—they are narrow, to the point, and point out specific areas where the two parties cannot agree.

That way, Matthewman said, “I don't have to feel like I'm a teacher in middle school babysitting people.”

Editor's note: Exterro provided Legaltech News video of the event after its conclusion.