As part of ALM’s Legalweek New York 2018, an esteemed panel of judges gathered for a special discussion, “Back to the Future: Predictions From the Bench”, to look back at events in 2017 and share their predictions for 2018, especially around issues of discovery and ediscovery.
The panel, which was sponsored by Thomson Reuters, included Retired Magistrate Judge James C. Francis IV of the U.S. District Court for the Southern District of New York; U.S. District Judge Xavier Rodriguez of the Western District of Texas; and Retired Magistrate Judge David Waxse of the U.S. District Court for the District of Kansas. The panel was moderated by Mary Mack, executive director of the Association of Certified E-Discovery Specialists (ACEDS) and co-author of eDiscovery for Corporate Counsel.
Mack opened the discussion with two industry observations from 2017: i) more automated techniques are coming to electronic discovery; and ii) the implementation of rule changes to the Federal Rules of Civil Procedure (FRCP), including Rule 37(e), “Failure to Preserve Electronically Stored Information” are important. Zeroing in on Rule 37(e), Mack asked the judges what impact the new rule has on attorneys’ behavior and the inherent authority of courts to impose sanctions for lost electronically stored information (ESI) that required preservation?
Judge Francis observed the new rule had not had the impact the framers intended and there has been no significant reduction in sanctions, although the rule ameliorated some fear in counsel of big sanctions for lost ESI. But, on the other hand, Judge Rodriguez said courts are now hesitating to sanction, and that the framers intent to cut sanctions has come true. Stating the new rule diminished courts’ ability to deter bad behavior, judges are looking to other means to this end — such as Rule 26(g), which aims at discouraging discovery abuse by requiring attorneys or parties to certify that discovery disclosures are complete and correct. Judge Rodriguez also pointed out that Rule 26(g) has been called the most important but the least understood of discovery rules. (See Mancia v. Mayflower Textile Services Co., 253 F.R.D. 354 (D. Md. 2008)).
To learn more about the FRCP Amendments impacting ediscovery and what this means for you, listen to the on-demand webinar, Practical Guidance on the FRCP Amendments.
Judge Waxse said to look to the purpose of the rules, as stated in Rule 1: “to secure the just, speedy, and inexpensive determination of every action and proceeding.” He said cooperation is the way to accomplish discovery purposes, adding that “litigation is to get disputes resolved not a place for lawyers to play.”
When Mack asked if the change in the scope of discovery to consider proportionality early in a case has streamlined the discovery process, all the judges were in agreement that attorneys were not yet prepared to tackle proportionality up-front. Although the rule has had a “beneficial effect,” said Judge Francis, because now motions and objections are better “formed and supported.”
As far as highlighting the most important ediscovery case(s) of 2017, the judges shared their own opinions as to the most impactful cases of the previous year. Judge Rodriguez thought there was nothing earth-shattering that happened, but did acknowledge that the inherent authority of federal courts to sanction bad faith conduct still lived in the U.S. Supreme Court’s decision in Goodyear Tire and Rubber Co. v. Haeger, but noted that Goodyear limited the sanction to awarding fees that the innocent party incurred because of discovery misconduct.
Judge Francis cited the importance of Winfield v. City of New York, as an example of a new judge on the bench engaging in sophisticated analysis of ediscovery and technology-assisted review (TAR). Judge Waxse relied on a group of cases applying Fourth Amendment protections to search warrants for ESI.
In closing, Mack wondered how the Supreme Court would decide the U.S. Department of Justice’s case against Microsoft over access to emails stored on the Redmond, Washington-based company’s servers in Ireland. Judge Francis, who decided against Microsoft in the case, noted the company “has done a terrific public relations job.” He stood firm in his position that the buttons for Microsoft to push to get the information are in Redmond, but said, “The court will decide as narrowly as possible.”