I am live blogging from the Masters Conference 2010 (a conference that attracts leading e-Discovery professionals). This session is “Judicial Expectations in E-Discovery” with panelists Judge Joy Conti, Federal District Judge, Western District of Pennsylvania and Magistrate Judge John M. Facciola, US Magistrate Judge, DC, moderated by Pete Pepiton, Associate GC of Mimecast North America. . 

Q: How can profession help educate judicary.
A: Conti says she holds meetings with other judges and local bar members to discuss e-discovery issues.
A: Facciola holds many educational sessions. New judges have less of the “deer in headlights” reaction to EDD today than 5 years ago. But this is dependent on the culture of each court. This is a particular problem in state courts, which are starved for funds (e.g., last week CA judges were paid with vouchers). State legislators need to spend more on the judiciary.
A: Conti says to identify receptive judges in each jurisdiction. If you find the receptive ones, they can engage other judges in their court.
A: Facciola – because so many EDD decisions stop at Magistrate level, there are fewer opportunities for District and Appellate judges to come up to speed on EDD

Q: Should judges advocate more proportionality?
A: Conti – a litigant has to raise this issue. It’s not the judge’s role to raise this issue sua sponte. In my district, judges have to keep some discovery disputes; cannot hand off all to magistrate. When I hear lawyers say EDD will cost too much, I have to ask a series of questions to understand the real cost. So I may suggest paring back, for example, by sampling. Even with wide disparity between parties in financial resources, each side needs a stake in the outcome. Judges need to be practical and realistic. It can sometimes take 3 hearings to get to the real information; if there were more cooperation, I could dispose of the issue in one hearing. Thinks some parties try to make EDD look so expensive to intimidate other side – but cooperation works better.
A: Facciola – cooperation is a direct function of confidence of lawyers knowledge of fact. Where there is asymmetry in what the parties know, it’s harder to achieve cooperation. The cost of review dwarfs all other costs. It ends up falling to judge to work with litigants to control cost of doc review.
A: both – trying to identify judicial resources who can help address the challenge. Conti has appointed special massters; some will have special EDD training. They will be paid by the parties. Facciola is working – thorugh Sedona – to set up special masters who will serve pro bono to help achieve proportionality.

Q: On proportionality, there are very few cases discussing the concept. How do judges deal with this?
A: Conti responds to claims that discovery will not be proportionate. Lawyers should have ideas when they approach the bench. The outcome does not result in a written opinion typically. It’s not a good use of judicial resources to write an opinion on proportionality when you can bring parties in for a frank discussion.
A: Facciola says you have to assess the value of the case. Where rights are at issue, it’s hard to put a value on the right. For example, what is the value if a disabled person is denied his or her rights? It’s not judiciary’s role to assign a value to such rights.

Q: Justice Einstein from Australia asks if bifurcation (“separate question order”) – requiring parties to litigate an issue separately – would help in US system. Bifurcating issues may allow resolving an issue that would otherwise require huge document volume
A: Conti says there is some experimentation with this approach in US courts. But the same judge has to keep both issues.
B: Facciola analogizes to certifying classes. Should discovery be allowed to support certifying the class?

Q: Corporations now have a duty to preserve. This duty arises well before any dispute. How does this interact with disputes?
A: Conti – if preserving data is very expensive and parties cannot agree on whether to preserve, seek judicial input sooner rather than later.
A: Facciola – worked on this to try to define “anticipation of litigation”. Defining this is a “dog chasing its tail.” Preservation is a “tough nut to crack”. Does a note from one employee to another saying “you know that is against the law”, does that trigger an obligation? But there are documents that organizations should clearly delete.
A: Conti – if a deletion policy is too aggressive (e.g., two weeks v 60 days), I will ask questions. Does not like “trigger happy” deletion. Will question why deletion is occurring so quickly. She will dig deep to understand if there is a real business justification for quick deletion.
A: Facciola – the lack of communication between lawyers and IT is a huge problem – and it’s getting worse over time, not better. This creates a huge problem.
A: Conti – when I call IT folks as a witness, they tell truth and are frank. What they say often surprises the lawyers. This is unacceptable.

Q: If parties reach ‘gentleman’s agreement’ to bypass e-data, how do you as judges handle it?
A: Conti – if parties have so agreed and it’s on the record, then it’s fine by me.
A: Facciola – as the years go by, it’s less and less realistic to take this approach. “Don’t look behind the curtain” won’t anymore. It’s not really my problem but I want to see people get justice.

Q: How do you handle problems with production specs?
A: Conti – if there is a problem with a production order, most are open to changing orders. Of course, this depends on the judge. I personally take calls from lawyers. Most judges are like this. You may need to talk to lawyers who appear and that court to learn judge’s approach.

Q: When do you require affadavits to substantiate EDD claims?
A: Conti – I require it all the time to support claims about cost or burden. When I get evidence into record, it often differs from lawyers’ initial assertions. So I say “show me”.
A: Facciola – I don’t take burdensome claims without support, which is typically affadavits. “Never trust a lawyer who uses the word computer in a sentence.” Need factual support.

Q: Have you seen any Daubert challenges or competing experts to get rid of junk science re burdens and defensibility?
A: Conti – tech people as witnesses are upfront and reasonable in my experience. They seem to be able to come to resolution without dueling experts. When you get the right IT resources working together, they can usually resolve the issues.
A: Facciola – I try to head this off by asking litigants to name experts in advance. It’s not a big problem

Q: Re statistical sampling…. what do you look for from advocate of doing it?
A: Conti – It can be as simple as my asking if, say a 5% sample would work. I can then consider of the cost of that. If a debate arises, I look for statistical experts. You need to figure out if the sampling yields reliable results. For the most part, it’s a practical and hands-on approach. Post-sampling, you can go back to judge to make adjustments.
A: Facciola – Draw a distinction between random and statistical sample. May need a stats expert. You need a statistically valid sample but we need to avoid adding more costs by having to hire statisticians. Better to look for middle ground that parties can live with.
A: Conti – some sampling can be targeted to key players. You don’t necessarily need to sample from every custodian (?). You may be able to narrow field to three employees.
A: Facciola – it’s not so much sampling as it is a categorization exercise. Figure out who communicates with whom and focus on the important communications. So categorization is a better concept than sampling. Think about indexing over privilege logs. (“In Hell, there will be privilege logs”)

Q: What are the ‘words’ of tomorrow? What will talk about in future? Privacy?
A: Conti – privacy, indemnification in event of breach, who pays
A: Facciola – Privacy, data breaches. Protective orders because discovery is not a public process. Judges have to be aggressive in making sure discovery is used only for the matter at hand.