On November 16, 2016 I attended a webinar hosted by Bloomberg Legal entitled, Advanced Techniques for Managing Digital Discovery. You can watch a free online demand recording of the webinar here. Magistrate Judge David Waxse (D. Kan.); Susan Leffert, a partner with Mayer Brown LLP; and Mark Noel of Catalyst where the panelists for the webinar.
The presentation was interesting primarily because of the insights of Judge Waxse, a sitting United States District Court Judge. Judge Waxse began by noting that while less than 1% of civil cases go to trial, attorneys are not necessarily inclined to settle matters very quickly. In his words attorneys have candidly admitted to him that they postpone the settlement of cases because they need to bill hours for the practical demands of life such as putting away money for the children's college education. The judge mentioned the District of Kansas's Guidelines for Cases Involving Electronically Stored Information [ESI] and specifically referenced Section 25 addressing discovery on party's preservation and collection actions. The judge pointed out that these guidelines state such discovery about discovery should not be routine and may violate the FRCP 26(g) ban on unreasonable or burdensome discovery. He recommended that parties come to an agreement on discovery before issuing interrogatories and preparing requests for production.
Judge Waxse observations are that while the use of Technology Assisted Review is growing, it is still not broadly used. People have still not grasped that TAR is cheaper, faster and more accurate. The lawyers that come before Judge Waxse still claim that they are comfortable until humans have reviewed the ESI. He bemoaned the idea that having staff attorneys review one document every 60 seconds was an effective means of review. He advises parties to share the services of single electronic discovery vendor.
Judge Waxse said that he wasn't sure of the general trend in the use of FRCP 37(e) sanctions since the December 2015 amendments, but he did notice that judges are not regarding this as the only basis for sanctions. They still assert the inherent power to issue sanctions. One example is the decision of Judge Francis (author of several noted electronic discovery decisions) in Cat3, LLC v. Black Lineage, No. 14-civ-5511 (S.D.N.Y.).
Judge Waxse pointed out GN Netcom, Inc. v. Plantronics, Inc., No. 12-1318-LPS (D. Del. July 12, 2016) as an especially scary case. Punitive damages in the amount of $3 million imposed by the court for spoliation. This case illustrates Judge Waxse's maxim that the most trouble and biggest sanctions come from attempting to cover up electronic discovery misdeeds, rather than the misdeeds themselves.
The group also touted Mayer Brown's white paper, Preparing for Electronic Discovery Litigation .