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What’s Wrong With Discovery? An Update from Legal Tech



As an active vendor at Legal Tech, with both a booth and a demo room to meet with clients, I don’t get to attend many education sessions. But I was sure not to miss the judges’ panel on “What’s Wrong with eDiscovery” that took place on Wednesday afternoon. Why? Essentially, when I have a chance to listen to leading jurists talk about the state of discovery practice in general and how shortcomings in the process affect justice, I think it behooves all of us to pay attention to what they say and to heed their advice. Since they are the ones in charge, it makes sense to listen to what they have to say on the topic.

The four panelists were three active judges, U.S. District Court Magistrate Judges: Frank Maas (S.D.N.Y.), Elizabeth Laporte (N.D. Cal.) and Andrew J. Peck (S.D.N.Y.); the fourth is the just retired, John M. Facciola (D.D.C.).

While a number of topics were covered, the focus of the session centered on an assessment of the state of civil litigation in the US and who really has individual access to the federal court system. Noting that very few civil cases actually go to trial, Judge Maas focused on the resulting problem of discovery. Without trials to focus attorneys on identifying the evidence needed to prove their case at trial, the direction has shifted. Lawyers now seek to get everything possible during discovery rather than the evidence that would likely to be admitted at trial, which is generally a small subset of potentially discoverable information.

Legal tradition is what Judge Peck claimed had a negative impact on today’s discovery problems because senior lawyers who run cases continue to have document review done manually; the same way it used to be done when they were associates since so many are under the impression that that manual review is the gold standard. Peck expressed frustration with keyword searches that are so often done with “absolute ignorance” about the case and the true utility of the results and with the reluctance of lawyers to get Rule 502(d) orders. Peck believes that there is no downside to having these orders in place and lawyers should not be afraid to use them.

The legal professions resistance to change was the focus of Judge Laporte’s comments. Even with changes to the Federal Rules of Civil Procedure requiring cooperation and transparency, these changes have not gotten the traction they should. Instead, lawyers continue to practice law the old fashioned way, treating their client’s data as “for me to know and you to find out.” People seem to have forgotten that a trial is about an interpretation about the facts, but that the facts are to be produced and evaluated at trial.

Judge Facciola emphasized the fact that lawyers rarely engage in a cost/benefit analysis before they wage discovery wars. The focus is often on winning the short term discovery battle rather than the practical evaluation of the case itself. Risk analysis is always a component of the business judgments made by clients, but most lawyers are not trained to assess the potentially high risk and minimal benefit associated with fighting over trivial discovery matters, relishing in the battle instead. Pushing judges to become involved in numerous unneeded discovery disputes often results in a disservice to their clients since it increases costs and often angers the judge.
Summarizing his opinion in a one line delivery, Judge Facciola stated that “a great trial lawyer has an instinct for the jugular, not the capillaries”, and focuses on getting to the heart of the matter.

Impact on the Admission of Justice
The judges emphasized the negative social ramifications of ever-increasing costs associated with discovery and civil trials and their comments are summarized below.
Judge Facciola
o High costs of civil litigation has made the federal courts inaccessible to the middle class, making it difficult for people to defend their rights.
o Fee shifting statutes designed to promote justice by providing incentives for lawyers to pursue socially important claims are not being enforced.
o Without changes, the vast majority of Americans will not be able to file in a federal court, regardless of the merits of their case.
• Judge Laporte
o Proportionality is not a definable numerical calculation; instead it relies heavily on what she called a “zone of reasonableness”, which is really nothing more than something making practical sense.
o Judges want parties to address the true relevance of information for discovery and the most efficient way to get to the information. Presenting yourself as the reasonable party goes a long way to convincing the judge that your approach should be supported
• Judge Peck
o The recent focus on proportionality could provide the opportunity to promote cases of social value since it includes an analysis of both dollar value and social value
o Lawyers and judges need to litigate cases as cost effectively as possible; and lawyers need to educate jurists about how various technology options can be used to achieve this goal
• Judge Maas
o Noted that proportionality is a popular recent buzzword, but that it is not really a new concept. Looking at what is fundamentally fair to both sides regarding discovery is likely to be in line with Rule 1 of the FRCP and proportionality.
When the judiciary takes the time to outline their expectations for lawyers in discovery, we should be responsible for evaluating how we can take that advice and turn it to our advantage. While the rules of discovery are fundamentally the same, how they get implemented in today’s world of eDiscovery is changing and on behalf of the clients that lawyers represent, they must be aware of the direction that the judiciary is taking and adapt new methodologies. Even a radical idea like stage discovery should be considered in the right circumstances for the right case. Lawyers should not be afraid to be the “reasonable” party before the judge, it can go a long way to getting what you need.

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