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Interviewed by Catherine Kiernan, Co-Editor in Chief, eLLblog.com
Thank you, Judge Hedges, for taking the time to provide eLLblog’s readers with some of your valuable insights about electronic discovery.
Q: What were the three most common and easily preventable electronic discovery mistakes that you witnessed lawyers or parties make while you sat on the Bench?
A: First, there is the failure to implement a timely and appropriate hold. Many parties (and sometimes attorneys) get in trouble for the failure to preserve discoverable ESI through the implantation and monitoring of a litigation hold. For example, in 2004, in Mosaid v. Samsung, Samsung did not produce critical e-mails from “custodians.” This failure led to the imposition of substantial sanctions against Samsung. Second, parties frequently face privilege issues which can arise from a failure to prepare adequate logs and to take reasonable steps to prevent the inadvertent production of ESI that would otherwise be subject to the attorney-client privilege or work product protection. We often see parties and attorneys faced with a massive amount of ESI undertaking automated review and automated “population” of logs. These automated processes sometimes “get it wrong,” and attorneys must be vigilant to see that this does not happen. Third, I believe that parties often overreach when they seek sanctions for spoliation and other ESI-related misconduct. Moving for case-dispositive sanctions can be expensive and time-consuming and such sanctions are rarely granted. Rather than seek an extreme sanction, lesser ones (perhaps extending discovery or allowing additional depositions) can often avoid prejudice to the moving party and, at the same time, can move the action ahead to resolution on the merits.
Q: If you could amend one electronic discovery rule with absolute discretion, what rule would it be and how would you change it?
A: I wouldn’t change any rule right now. There is a great deal of experimentation going on in the federal courts around the Nation. That experimentation is intended to develop mechanisms, formal and informal, to reduce costs and delays associated with electronic discovery. I would like to see these experiments given more time to evaluate what new mechanisms do and do not work.
Instead of rule changes, I would opt for more education of judges (State and federal) and attorneys about the rules which currently exist. We should focus on (1) enforcement of the existing rules, (2) requiring attorneys to engage in meaningful efforts to cooperate, and (3) striving for proportionality in discovery. Undertaking these efforts to control the scope and volume of discovery are more likely to lead to efficiencies in litigation than adopting new rules.
Q: Why did you and your colleagues Barbara J. Rothstein and Elizabeth C. Wiggins decide to create a second edition of the Pocket Guide, and what do you hope it accomplishes?
A: We wanted to bring to the Bench (and the Bar) what had been learned – and had developed — since the Pocket Guide was first published in 2007. I trust there will be a Third Edition in a few years which will include new developments, for example, the legal implications of the use of social media, and the explosion of “bring your own device” (“BYOD”) as a factor of employer-employee relationships.
Q: What do you think are some of the major current issues with electronic discovery?
A: One of the big issues arises in the employer/employee area. This has to do with BYOD, as I mentioned above. Speaking broadly, what policies may an employer (private or public) impose on an employee’s use of the Internet to communicate with fellow employees? What happens when an employee uses a personal device to conduct her employer’s business? Does the employee implicitly allow the employer access to everything on the device? What happens when such use gives rise to security or privilege issues? Moreover, social media use will continue to expand and give rise to new services. This expansion cannot help but lead to major issues. Finally, and moving away from civil litigation, ESI is becoming a major “player” in criminal litigation, from preindictment investigation through trial. That implicates duties and rights of Government and the accused derived from the United States and state constitutions. We are only beginning to see the development of case law, as we apply an 18th Century document to the 21st Century.
Catherine Kiernan: Thank you Judge Hedges. Your vast experience and knowledge of electronic discovery issues provide great insight to this rapidly developing area of law.