Federal Judges and Leading Attorneys Largely Agree on the State of E-Discovery

PORTLAND, OR--(Marketwired - January 27, 2016) - Exterro^® Inc., the preferred provider of software specifically designed for in-house legal and IT teams at Global 2000 organizations, today announced the results of their second annual Federal Judges Survey. The survey asked 14 Federal Judges and 22 leading attorneys who specialize in e-discovery a variety of questions on the current state of the legal community. Survey questions covered: the effectiveness of the new FRCP amendments, e-discovery competency, and emerging legal trends related to data and technology. While there were areas where the Judges and Attorneys disagreed (such as who or what is to blame for e-discovery incompetency and the potential effectiveness of the FRCP amendments) the key takeaway from the survey is the vital role e-discovery plays in the legal process, and that both attorneys and judges need to become more educated to fully realize the benefits that the FRCP amendments are intended to impose.

"There's been an awful lot written, said, and predicted about the changes to the Federal Rules of Civil Procedure (FRCP) that went into effect on Dec 1," says Bill Piwonka, chief marketing officer at Exterro, "but as Chief Justice Roberts has written, these changes will only be effective if the entire legal community steps up to the challenge of making real change. Our intent with this survey is to get a sense from both sides of the bench as to the current state of the e-discovery process."

Survey Highlights

• Judges and Attorneys slightly disagree on whether the FRCP amendments will help solve problems that currently occur in e-discovery today (57% of Judges thought so, while 50% of attorneys agreed) but agree that Rule 37(e) and Rule 26(b)(1) will have the biggest impact on E-Discovery.
• Both parties agree that e-discovery competency continues to be an issue in courtrooms today. 65% of all respondents completely or somewhat disagree that 'The typical attorney possesses the subject matter knowledge (legal and technical) required to effectively counsel clients on e-discovery matters.'
• Judges and attorneys differ in where the blame lies for the lack of e-discovery knowledge. 71.43% of Judges surveyed blame a lack of cooperation between parties, while 55.45% of attorneys look towards a general aversion or lack of experience in dealing with e-discovery issues.
• As for data sources, there was agreement from both sides that despite all the new data sources popping up, both sides see email as the biggest source of responsive data today (70% of attorneys and 100% of judges).
• When trying to predict the future of new data sources, 36% of judges are looking towards mobile data, while only 5% of attorneys view mobile as the data source of the future.

The importance of E-Discovery has been highlighted recently with the FRCP amendments and comments written by Chief Justice John Roberts in the Supreme Court 2015 Year-End Report on the Federal Judiciary. Roberts weighed in on the recent changes to the FRCP saying, "The 2015 civil rules amendments are a major stride toward a better federal court system. But they will achieve the goal of Rule 1 -- 'the just, speedy, and inexpensive determination of every action and proceeding' -- only if the entire legal community, including the bench, bar, and legal academy, step up to the challenge of making real change. ...Judges and lawyers [have an obligation] to work cooperatively in controlling the expense and time demands of litigation. ...Lawyers -- though representing adverse parties -- have an affirmative duty to work together, and with the court, to achieve prompt and efficient resolutions of disputes."

According to John M. Facciola, retired United States Magistrate Judge from the District of Columbia and survey participant, "The new Rules amendment requires the parties, as well as the courts, to work towards the 'just, speedy and inexpensive determination of every action and proceeding'. Effective judicial administration of the discovery process is an obvious goal of the amendments. This emphasis on efficiency and the productivity of counsel requires that lawyers simply must understand the technology of E-Discovery and how to use the available mechanical and legal tools to get the job done. The survey provides an accurate assessment by the judges of whether the bar is meeting and will meet this vital demands."

Attorney survey participant, Bennett Borden, Partner & Co-Chair of the Information Governance and E-Discovery Group, Drinker Biddle & Reath LLP says, "As this important survey shows, there is a wide variety of opinion among the bench and the bar about the impact the amendments will have. It seems certain, however, that the interplay between the reduced scope of discovery and the new sanctions framework will create strategic opportunities to press for significant change in e-discovery obligations, especially regarding preservation. Proportionality has become an increasingly important aspect of managing discovery; it will now take on primary importance."

The second annual Exterro Federal Judges Survey results, including quotes from participating judges and attorneys can be downloaded here.

About Exterro

Exterro®, Inc. is the preferred provider of software specifically designed for in-house legal and IT teams at global 2000 organizations. Founded with the simple vision that applying the concepts of process optimization and data science to the way companies respond to litigation would drive more successful outcomes at a lower cost, Exterro is once again positioned as a leader in Gartner's 2015 Magic Quadrant for E-Discovery Software. Built on an open architecture platform, Exterro's e-discovery and information governance software integrates with existing IT, HR and legal systems to deliver complete visibility into all critical data required for managing information assets more efficiently.