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In a newly released survey of 260 retired and sitting federal judges examining e-discovery, Exterro and EDRM/Duke Law discovered judges' views concerning e-discovery and their sanctions and affirmative actions regarding e-discovery. The top causes of sanctions related to e-discovery are bad faith and poor communication, according to the survey.

While only 13 percent of surveyed judges said they've issued an e-discovery sanction, 74 percent said they've taken multiple affirmative actions, such as requiring additional conferences and issuing warnings, to solve e-discovery problems.

Intentional misconduct that caused spoliation was the most common (86 percent) circumstance leading to a sanction, according to the surveyed judge. Parties not preserving data when the duty to preserve was triggered was cited by 52 percent of judges as an action most likely to lead to a sanction, followed closely by a lawyer's failure to communicate with custodians causing spoliation (49 percent).

When working cooperatively through the e-discovery process, 83 percent of surveyed judges ranked working together without the court to identify reasonable and proportionate e-discovery parameters as the top component of efficiency. What's more, proactive communication between parties prior to a meet-and-confer was cited by 74 percent of respondents as an essential component of cooperation. Lastly, judges said requiring a party to meet-and-confer with an opposing party to develop the search methodology (69 percent) and candidly representing e-discovery demands (67 percent) were also important for efficient e-discovery.

Communication between the parties is vital, as only 22 percent of surveyed judges consider themselves active discovery managers.

The notion of many federal judges being highly trained and knowledgeable in e-discovery is “not the sentiment across the board, not even close,” said Exterro's Mike Hamilton.

“They [judges] are not used to many of these issues when they actually practiced law,” Hamilton said. “Now that they are on the bench they are really depending on the parties presenting before them.”

He added, “I know the [Federal] Judicial Center has done more training around this, but I think it's one of those things if you are a district judge you are going to pass on the e-discovery matters to a magistrate judge.”

In turn, 78 percent of judges said they spend less than 10 percent of their time in civil cases managing and resolving e-discovery issues. Meanwhile, 67 percent said they would consider using their inherent authority for e-discovery sanctions if Federal Rule of Civil Procedure (FRCP) 37(e) did not apply.

“If they feel if something has been done in bad faith that questions the legitimacy of one side's discovery process, they feel they have the authority to punish that party for whatever action they took,” Hamilton explained. “I think they want to keep some sort of tool in their back pocket so they can keep discovery practices done in a defensible, good-faith matter.”

However, judges did note e-discovery competence is improving. Indeed, 56 percent of surveyed judges agreed lawyers have shown an adequate level of knowledge and expertise in e-discovery matters, compared to 2018's 23 percent. Meanwhile, when rating their own e-discovery competence, 63 percent of judges said they require additional training in certain limited areas of e-discovery technology and practice.

Still, surveyed judges said they saw Rules 26(g)(3) and 37(c) more neglected than other rules. Specifically, Rule 26(g)(3) ensuring that a discovery request/response is “complete and correct” was selected by almost half (48 percent) of respondents as a rule lawyers aren't complying with. Likewise, 38 percent of judges said Rule 37(c)'s duty to disclose, to supplement an earlier response or to admit it wasn't being complied with, followed by Rule 16(f)'s requirement to obey a scheduling order or be prepared for pretrial conferences (23 percent).

Also, judges reported emails, text messages and “data not reasonably accessible” including deleted data and backup tapes were the data they most often saw spoliated.

Judges surveyed also stressed that lawyers understand their client's e-discovery technology, IT infrastructure, troublesome collection or production issues and preservation strategy.

“Judges did emphasize you need to speak with your client's IT people as soon as possible,” Exterro's Hamilton said. “They need to be on the same page of what the burdens are to preserve, collect and store data.”