This is a live post from the Bloomberg Big Law Summit. Please excuse any typos or errors in how I capture proceedings.
Session Description
Closing Keynote: A Conversation with The Hon. Judge Shira A. Scheindlin, United States District Court for the Southern District of New York
Interviewed by: Jason R. Baron, Of Counsel, Information Governance and eDiscovery Group, Drinker Biddle & Reath LLP and former Director of Litigation for the U.S. National Archives and Records Administration
Discussion
[The Judge has been a key figure in shaping the law of electronic discovery, authoring multiple related decisions in Zubulake, which were among the first published Federal eDiscovery decisions.]
Q: What kind of changes have you seen in your two decades on the bench?
A: The use of ESI (electronically stored information) is everywhere, in civil and criminal cases. Its not just email; it can be GPS, mobile devices, elsewhere. Lawyers must have a handle on it. Separately, there has been a tremendous decline in trials. “Nothing goes to trial”. I’ve thought hard about this. I think the answer is that the American discovery system is so robust that there is very little left to try. Discovery and motion practice uncovers the facts so there is much less need to go to trial. So thinking we have too much discovery may be the wrong framing.
I also see changes in the way we prepare for litigation. The rooms full of young associates slaving over documents will go away. “The machine does it better.” Machines sort through documents faster and with more accuracy than humans.
There is also a marked increase in the amount of foreign law and data from overseas sources.
Q: What about competency on tech for judges?
A: Judges will be younger over time and eventually understand it. In Federal system, there is a big need for training. Appellate judges know nothing about eDiscovery. USSC has ruled on 3 EDD issues – pagers, cell phones, and GPS – with respect to privacy. [RF: not sure I’d call these Scoutus decisions eDiscovery ones.]
State courts raise a difficult issue. There are 1000s of judges in multiple systems across the states. For example, are family law judges receiving eDiscovery training?
Q: How confident are you about lawyers’ tech competence?
A: In US Federal District Court in Manhattan, the lawyers get it. I can’t speak to other specific cases. In 90% of my cases, lawyers have never heard of ESI and don’t need to know about it. But in the 10% of cases where it matters, the lawyers are up to speed.
Q: What’s your view of using special masters for discovery?
A: If the economics support it, then I’m for it. When the stakes warrant it, it’s worth it – the parties should ask for one.
Q: You were at forefront of 2006 FRCP Discovery Rules changes… there were 1000s of comments. What do you expect to see coming in rules changes?
A: First big change is Rule 26, describing the scope of discovery. Scope now relates only to claims and defenses. This narrows scope. Now, for the first time, scope relates to proportionality. This is huge. Rules say “relevant and proportional” and offer six factors for court to consider. Litigant can object on discovery request not being proportionate. I’m not sure how this will play out in motions practice but it’s new arrow in quiver. The rules do not say who has burden of proof re proportionality. There is also an explicit cost-shifting provision.
There are also rules re sanctions. These will have an impact. “Intent to deprive” replaces “mere negligence” in sanction / default for failing to produce documents. But litigant can put facts about lost documents in front of jury. Thinks this is a back door to adverse inferences. What the rule does not do is set forth more guidance on preservation of documents.
Q: From your side of bench, what do you see in change in legal practice? What about players that are not traditional law firms?
A: I know that tech and vendors and consultants are becoming part of law firms and law departments. They may even be blurring the lines of the practice of law. Ethical rules say lawyers must supervise – so they are still ultimately responsible.
Another reason for there being fewer trials is that so much is recorded now. With so much email and text, we have more complete records. “The proof is incontestable.”
Q: You have been hard on corporations for failing to issue legal holds. Are you comfortable saying to lawyers and firms that you have to do a better job “taming the chaos” of data?
A: Sanctions only kick-in on reasonable anticipation of litigation AND reasonable steps to preserve. Courts will have to assess what “reasonable steps” mean. Law does not say holds are mandatory but failure to issue litigation holds may strongly favor a finding that reasonable steps were not taken.
Impact of tech on the courtroom… e-filing allows judges quick and access to decisions and docket contents. Presentations to courts have changed dramatically. There is no jury trail without PowerPoint, screens. Video conferences are big.
Q: What can courts do to reduce costs?
A: Decide motions quickly. It’s terrible for judges to sit on motions. An efficient judge decides motions promptly. Also, we don’t need motions for everything. Write letters to me – I don’t need briefs on everything.
[I did not capture audience Q&A]