Activist judges? University of Florida examines electronic discovery and judges’ role in it
How active should judges be in the e-discovery process? This is something that has been reflected on for years, perhaps more particularly in the debates leading up to the 2015 electronic discovery changes to the federal rules of civil procedure.
Judges are often the guardians of justice for society. Thus, it is reasonable to wonder whether we should not force them to waste their time playing rock-paper-scissors to settle discovery disputes between litigants in overzealous battles.
On the other hand, discovery is arguably the most important part of the dispute. Shouldn’t judges play an active role?
By the way, this rock-paper-scissors reference is, unfortunately, a true story taken from a real case, as we’ll see below.
In a series of law journal articles published in the Levin College of Law, University of Florida Florida Law Review, Florida Law Review Forum, and at its upcoming eighth annual e-discovery conference on March 18, the law school is examining the role of e-discovery in the legal system. One of the articles, Activist judges? : The Technology, Rule 1, and the Limits of Judge Matthewman’s New Paradigm for Electronic Discovery, written by this author, examines the role of judges as technology has changed the legal landscape of discovery.
It’s a story of Maytag repair reps, coin tosses and, yes, paper scissors.
A simple eight words
In his 2015 Year-End Report on the Federal JudiciaryU.S. Chief Justice John Roberts commented on the 2015 Fed amendment. R.Civ. P. 1, and wrote: “Rule 1 of the Federal Rules of Civil Procedure has only been extended by eight words, but these are words that judges and practitioners must take to heart,” adding that “words express the obligation of judges and lawyers to work in cooperation to control the expenses and delays of litigation.
The Chief Justice indicated how important he believed the 2015 changes to eDiscovery were when he continued: “I cannot believe that many members of the bar went to law school because of ‘a burning desire to spend their professional lives wearing down opponents with a creative and tedious discovery. demands or evade legitimate demands by delaying tactics.
As e-discovery professionals, is this what we do?
In 2021, it’s trite to say that technology and the pandemic have changed how legal teams and courts work, but it’s true. As Victoria Hudgins reported in Legaltech News, they fundamentally changed the way court proceedings are conducted. How should judges approach these changes?
Chief Justice Roberts believes that judges should take an active role in responding to Rule 1’s call for “the fair, rapid and inexpensive determination of every action and proceeding”, but how important should that role be? to be active ?
Judge Matthewman’s New Paradigm
The genesis of Activist judges? article was that of American magistrate William Matthewman Florida Law Review article, Towards a new paradigm for e-discovery in civil litigation: a judicial perspective.
In addition to Activist judges?, University of Florida Florida Law Review Forum published responses to Judge Matthewman’s article in Honorable Andrew Peck of DLA Piper and the University of Florida Levin College of Law Professor William Hamilton.
Justice Matthewman’s “New Paradigm for Electronic Discovery” includes 10 “core components”, ranging from appropriate and timely preservation to focused and precise discovery requests, professionalism and cooperation.
The core component 10 of the judge is “Active participation of judges in the investigative process and prompt resolution of any investigative dispute by the Court”.
So we have Justice Matthewman, a well-respected jurist — and the author of one of the most remarkable e-discovery decisions of 2020-as well as the Chief Justice of the United States calling for active judicial participation.
Maybe that fixes the problem?
Justice Peck’s point of view deserves to be noted. In his article, Judge Peck, author of landmark decisions in e-discovery itself, felt that Component 10’s call for more active judges is “unfortunately” the most important of the New Paradigm — unfortunate because judicial resources are scarce.
Additionally, a journey through the trials and tribulations of jurisprudence can be instructive.
US trial judge Peggy Leen (D. Nev.) Famously wrote in the 2010s Mazzeo v. Gibbons that a trial judge is “not the Maytag fix for federal judges desperately hoping for something to be done.”
Quoting Judge Leen, US District Judge Nancy Koppe (D. Nev.) Wrote in 2016 Olesczuk v. Citizens One Home Loans, a “pillar of federal litigation is that” discovery is supposed to take place with minimal involvement of the court “and that” disputes relating to discovery should only be brought to court as a last resort and only when the dispute underlying involves really important interests ”.
Sometimes court babysitting adventures reach almost comical proportions.
In the years 2006 Avista Management, Inc. v. Wausau Underwriters Insurance Co., U.S. District Judge Gregory Presnell (MD Fla.) described the attorney’s inability to agree on the location of an FRCP 30 (b) (6) filing as “the last d ‘a series of Gordian knots that the parties were unable to resolve. disentangle without appealing to federal justice.
To resolve this important issue, Justice Presnell issued a new order: “Every lawyer has the right to be accompanied by a paralegal who will act as an attendant and witness. At this moment . . . the lawyer must engage in one (1) game of “rock, paper, scissors”. The winner of this entry will have the right to choose the location for the 30 (b) (6) deposit.
Things weren’t getting better in Arizonis v. Suffolk Bus Corp., when US magistrate judge Gary Brown (EDNY) cited the precedent value of rock-paper-scissor case law, noting an exasperated US magistrate judge Hugh B. Scott (WDNY) cited the proposed remedy by Presnell J.in Pritchard v. Erie County.
However, Justice Brown noted shortcomings in the use of rock scissors as a means of dispute resolution and ruled on a better remedy: the device. The present case may be best resolved, in the opinion of this Court, through the use of lottery, a commonly used practice which utilizes an article manufactured to exacting standards by the United States Mint. .
Justice Brown ordered the lawyer to flip a coin to determine the order of the depositions, writing: “I hope this procedure will demonstrate to the lawyer that instead of an expensive practice of motions, the questions can be resolved with an investment of twenty-five cents. “
These patterns of procedural facts may be atypical, but they illustrate the justified exasperation of some judges. As Justice Peck wrote, judicial resources are scarce.
Of course, judges could spend less time arbitrating discovery-related disputes if lawyers and their clients lived up to their end of the Rule 1 bargain and agreed to cooperation. At the Relativity Fest 2014 judicial panel, the public was treated to the wit and wisdom of the Honorable David Waxse on the matter.
If you advance towards the 12:30 mark of the video of the Judicial Panel, you’ll see Judge Waxse’s novel – dare we say “activist” – the judicial approach to fostering cooperation, as well as comments from Judge Peck, US District Judge Xavier Rodriguez and Senior US District Judge Nora Barry Fischer .
As noted above, the eighth edition University of Florida Levin College of Law Electronic Discovery Lecture will take place on March 18. The conference is virtual and free this year, and you can register here.
Judge Matthewman will be joined on the conference’s judicial panel by US Magistrate Judge Patricia Barksdale, US Magistrate Judge Gary Jones, US Magistrate Judge Mac McCoy and US Magistrate Judge Julie Sneed. Justice Rodriguez will join the conference for a discussion of important case law in electronic discovery.
We will discuss the role of judges in e-discovery, as well as e-discovery topics ranging from artificial intelligence to the e-discovery job market.
There may even be comments on rock-paper-scissors case law.
David Horrigan is the Discovery Lawyer and Director of Legal Education at Relativity. An attorney, law school guest speaker, industry analyst and award-winning journalist, he will be the moderator of the University of Florida Judicial Panel on March 18 and the eighth annual Relativity Fest Judicial Panel in October.