Federal Judges Survey from Exterro weighs in on new data privacy laws and evolving e-discovery practices

Note to in-house legal teams: The federal judiciary wants more involvement when it comes to e-discovery activities. According to the 6th Annual Federal Judges Survey, put together by Exterro, Georgetown Law CLE, and EDRM, in-house legal teams have been shirking their duties with regards to meet-and-confer negotiations and must pay greater attention to new data types, specifically the preservation risks associated with ephemeral apps.

“This report provides valuable information for all attorneys who are experts or novices in cases involving ESI (electronically stored information),” said Hon. Elizabeth Preston Deavers, Chief U.S. Magistrate Judge for the Southern District of Ohio.

For this 6th Annual Federal Judges Survey, the focus was on 20 judges with extensive e-discovery expertise, uncovering a variety of unique and new observations from the bench, including:

  • New data privacy laws will increase e-discovery expenses by creating more litigation and making production more costly
  • FRCP 16(f) needs more attention, as a majority of judges say that is the most neglected e-discovery rule
  • Intentional e-discovery misconduct is growing, as a majority of judges (50%) took corrective action five or more times over the prior year—up from 26% in last year’s survey

When some of the participating judges were asked what they thought of the survey results, this is what they had to say:

  • Hon. Michelle Childs, US District Judge from the District of South Carolina, who frequently oversees e-discovery issues, said “E-Discovery has now required companies and the court to be even more concerned about privacy implications in document production.”
  • Hon. Xavier Rodriguez, US District Judge from the Western District of Texas, felt this was the key takeaway from the report: “The necessity of meaningful conferences with opposing counsel and an interactive discussion with the judge in a Rule 16 conference about the scope of discovery and privacy implications is the key takeaway from this report.”

Download the full 2020 Federal Judges Survey Report here.