How Judges look at E-Discovery

Twenty-two federal judges were queried on e-discovery trends and best practices. The results and associated comments are a snapshot of overall e-discovery competency and shortcomings, a glimpse at future trends, and a guide to how attorneys can improve their e-discovery acumen and practice.

One of the most problematic areas for parties in e-discovery disputes is the identification stage. “Parties often fail to consider e-discovery pre-suit or even early in the lawsuit, and thus make potentially irreversible mistakes,” commented one judge.

Most e-discovery mistakes stem from two common problems: lack of process and communication. Said one judge: “Most problems seem to relate to the absence of adequate procedures.” Another judge commented that he had seen problems “arise from poor cooperation among the parties, the lack of defensible policies, and a lack of knowledge on the part of lawyers and parties.”

One underutilized strategy for e-discovery cost control is leveraging Federal Rules of Evidence 502(d) waiver agreements, which enable a federal court to order that the privilege is not waived “by disclosure connected with the litigation pending before the court – in which event the disclosure is also not a waiver in other federal or state proceeding.” This dissolves the risk of inadvertently producing privileged information usable against the producing party and ensures return of the material without motions being filed, but the survey revealed that few litigants take advantage of it.

A proposed new federal rule addressing “proportionality” was cited as a potential game-changer.