Written by Doug Austin, Editor of eDiscovery Today
Last week on eDiscovery Today, I covered results from the polls taken during various sessions at the University of Florida E-Discovery Conference. With nearly 1,500 attendees for each session and several hundred responding to each poll, that resulted in very informative poll results!
One session that had some of the most interesting poll results was the Judicial Panel Session on Day 1 involving several judges who are very experienced in discovery matters, during which the attendees were asked several poll questions regarding judicial involvement in the discovery process as well as how knowledgeable judges are – and should be – about technology.
Poll Results from UF-Law Judicial Panel
There were six poll results in the Judicial Panel (which I covered here) and 773 responses to each of the polls. Three of them had particularly noteworthy results:
- 70% of respondents said judges should be somewhat active or very active in the discovery process.
- 8% of respondents said judges are very knowledgeable about technology.
- 57% of respondents said judges should be very knowledgeable about technology, as just about every case in 2022 is a technology case.
Add to that last number 39% of respondents that said judges should be at least somewhat knowledgeable about technology and that leaves only 4% that think judges don’t need to be knowledgeable about technology – unless technology is central to the merits of the matter (which happens more often than ever these days).
Recent Cases That Have Required Technology Considerations from Judges
There is no shortage of cases that require judges to consider technology implications in issuing their rulings. In some cases, they are even forced to defend their own practices regarding their own use of the technology. Here are three cases in the past two months I’ve covered that have required technology considerations from judges:
- In Re Cooley, Relator: In this Texas state case, the Texas Fifth District Court of Appeals granted the writ of mandamus from the relator seeking relief from a trial court order to make device(s) that took photos of her injury available for inspection. The trial court had issued that order after there was a dispute over the metadata associated with the photos, even though Cooley’s counsel demonstrated by opening a photo how to determine the date the photos were taken.
- Arconic Inc. v. Novelis Inc.: The plaintiff filed a motion to recuse Pennsylvania District Judge Joy Flowers Conti over the fact that orders filed by the Court contained author metadata from the special master’s staff, forcing Judge Flowers to demonstrate how the author metadata was unreliable in determining who was the true author of the document.
- Edwards v. PJ Ops Idaho: Idaho District Judge David C. Nye granted the plaintiffs’ Motion to Compel production of the entire email mailboxes of two individual defendants, finding that the request for the entire email mailboxes was “as reasonably proportional and particular as it can be”.
Each of these cases required some level of technology competence for the judge to make a ruling and it can be argued in at least two of them that a lack of technology competence could have led to a ruling that added to the discovery burden of the parties in the case. In the first case, the appellate court had to find that the trial court abused its discretion to grant the writ of mandamus, which is a significant hurdle to overcome. In the second case, the court granted the plaintiffs’ Motion to Compel, even though the defendants would need to review 225,000 additional documents at an additional cost of up to $235,000! It will be interesting to see if that ruling is appealed and, if so, if it is overruled.
Proportionality in discovery and conducting discovery upstream not only requires technology competence from attorneys involved in the case, but it also involves technology competence from the judges ruling on discovery disputes as well.
The Sedona Conference® Cooperation Proclamation: Resources for the Judiciary has existed since 2011 to provide some of those critical technology resources for judges, with the Third Edition recently published in 2020. Judges need to be technically competent too – just ask the 773 people who voted in the UF-Law poll!
And for more educational topics from me related to eDiscovery, information governance, cybersecurity and data privacy, feel free to follow my blog, eDiscovery Today!