E-Discovery can be a thankless task. When performed effectively, it remains in the background while litigators use the ammunition it provides to prove their story is fact.

But when there’s a failure or misstep, it earns the attention of opposing counsel, the ire of judges, and potentially damaging outcomes in legal matters. What can and should attorneys do to ensure they don’t end up on the wrong end of an e-discovery sanction or warning?

A recent report from Exterro and EDRM provides insight into what federal judges see as the most common missteps attorneys should avoid in e-discovery.

The 2019 Judges Surveyanalyzed data from over 260 responding district and magistrate judges and identifies three common mistakes attorneys can make, as well as lessons for how to avoid them. (Note: rounding and/or multiple responses to certain questions may result in percentage totals not equaling 100 percent.)

1. Failing to Cooperate With Opposition on E-Discovery

While most lawyers understandably have an adversarial mindset, it’s not appropriate during e-discovery. When asked which of five components of cooperation were most important (they could choose as many as applied), the judges were clear. All of the components are important:

  • Working together to identify reasonable e-discovery parameters: 84 percent.
  • Proactive communication before the “meet and confer”: 74 percent.
  • Collaborating on development of search criteria: 69 percent.
  • Candid representation of their e-discovery demands: 67 percent.
  • Transparency into their client’s IT infrastructure: 54 percent.

Asked to give advice on minimizing the risk of e-discovery sanctions, one responding judge commented, “Work collaboratively with opposing counsel. Save your fighting for trial or summary judgment.”

2. Assuming Judges Will Actively Manage the Discovery Process

While some interpret Rule 1 of the Federal Rules of Civil Procedure (FRCP) as advising active case management as a means to achieve “just, speedy, and inexpensive” resolutions to legal matters, fewer than one in four judges see themselves as actively managing discovery.

To achieve the best results, attorneys must proactively manage e-discovery. Judges will resolve disputes promptly and intervene when cooperation breaks down. But with modest amounts of time to spend on discovery (78 percent of respondents spent less than 10 percent of their time on civil cases managing e-discovery), judges rely on counsel to bring important issues to their attention.

Commenting on the survey results, Hon. James Francis, U.S. Magistrate Judge in the Southern District of New York (Ret.) observed, “Regardless of whether lawyers want to control the issue, if you raise the issue before the judge early on, you’re less likely to have a train wreck during discovery. If there’s a problem, be upfront about it. No matter what the nature of the dispute—if there’s a problem locating documents or identifying custodians—knowing that early is better than having it blow up later.”

3. Not Understanding Your Client’s E-Discovery Capabilities, IT Infrastructure

One surprising result in the survey was the extent to which judges expect attorneys to have a thorough understanding of their clients’ information technology and e-discovery capabilities.

Long gone are the days of boilerplate responses about “unduly burdensome” requests and inadequate 30(b)(6) depositions. The chart below illustrates the judges’ high expectations of outside counsel.

Clearly, judges expect the counsel arguing before them to have a solid grasp on the technical e-discovery issues. This means that attorneys should involve their clients’ IT experts early and often. Judges understand that the IT professionals are the real experts, and they should be consulted with to identify any potential technology pitfalls.

One responding judge expected attorneys to understand the urgency of the issue, commenting, “Lawyers need to get involved and not leave it to their clients. The IT personnel who understand systems need to be involved early in the process. Don’t delay. It is not a game.”

Reflecting on the likely causes of e-discovery sanctions, Gareth Evans, Partner at Redgrave LLP, observed, “Other than the extreme cases of rogue actors intentionally destroying evidence, what most often gets parties in trouble is a pattern of repeated preservation and production failures coupled with poor communication with the court and opposing litigants.

The worst sanctions decisions are invariably when the judge has become very upset with a party’s many failures. The best ways to avoid these pitfalls are to have processes and technologies in place to handle e-discovery and to involve experienced and knowledgeable e-discovery counsel.”

Author Information

Mike Hamilton is the Director of E-Discovery Programs at Exterro and has been involved in e-discovery for over eight years. With a legal and business background, Mike is experienced and passionate about creating thoughtful, out-of-the-box educational resources that help keep legal teams interested and on top of emerging need to know e-discovery issues.