Judicial Modesty: Not an Oxymoron

James C. Francis IV

Law Technology News

02-01-2013

Judges are not by nature shy and retiring. They are accustomed to issuing orders. There are circumstances, however, where restraint is warranted, and managing electronic discovery is one of these.

The exploding cost of electronic data discovery, together with its corrosive effect on litigation, has been the subject of much commentary.¹ Barely one percent of all civil cases filed in federal court proceed to trial, and the pressure to settle created by burgeoning e-discovery costs has been cited as a major cause of this phenomenon.² Indeed, as the volume of electronically stored information continues to grow exponentially, it may be expected that the situation will only get worse.

As a consequence, there have been calls for judges to play a greater role in the management of discovery, and some have answered the invitation, going so far as to issue orders approving search techniques or dictating the use of specific keywords.³ At some point, however, judicial intervention morphs into judicial interference and ends up as a net burden on the litigation. Judges need to be sensitive to the legal boundaries of their authority, the practical limits of their expertise, and the range of tools at their disposal, short of a judicial decree, that they can use to enhance the efficiency of e-discovery.

> Of Course I Can Do It, I'm the Judge. When the Federal Rules of Civil Procedure were first enacted in 1938, the discovery rules were intended to be largely self-executing: discovery demands would be propounded and answered as a matter of routine, with the courts becoming involved only in the most egregious cases.⁴ Although later amendments have placed substantive limitations on what is discoverable and have, as in Rule 16(c), identified issues to be considered in pretrial conferences, none has given judges the authority, for example, to dictate to the parties how or where to search for documents.

Likewise, judges lack authority to issue orders that are merely advisory opinions. The discovery rules anticipate judicial intervention once a dispute has crystalized, through such devices as an order compelling discovery or imposing sanctions. The rules do not provide for issuing a judicial decree when counsel simply foresee a controversy, as when one party contends that the other's keywords will fail to elicit all relevant documents. Nevertheless, judicial "management" is often imposed in precisely such circumstances, before the question is ripe for review.

> I'm A Judge, So I Know Discovery. Even if there were no legal barriers, there are substantial practical risks associated with judicial activism in e-discovery. Any judge with significant tenure on the bench likely conducted discovery exclusively in paper form while in practice, combing through files in a warehouse, reviewing documents manually for relevance, privilege, and confidentiality, and Bates-stamping and photocopying those responsive to a request. In short, judges generally lack the technical expertise to micromanage e-discovery. As U.S. Magistrate Judge John Facciola (District of Columbia) — one of the more technically savvy members of the federal bench — has observed, "Whether search terms or 'keywords' will yield the information sought is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics . . . . Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread." United States v. O'Keefe, 537 F. Supp. 2d 14, 24 (D.D.C. 2008).

Perhaps because judges are comfortable with linguistic searches from using computer-assisted legal research tools such as Westlaw and Lexis, some have not heeded Facciola's caution. In a case involving a claim under the Fair Labor Standards Act, one court vetted dozens of keywords submitted by the parties, evaluating whether search terms like "time," "overtime," "poultry and egg," or "chicken council" would yield responsive documents. Helmert v. Butterball, LLC, No. 4:08CV00342, 2010 WL 2179180, at *1-6 (E.D. Ark. May 27, 2010). Yet, there is no indication whether the judge's choices were ever quality tested to determine if they resulted in a more efficient search than the keyword lists submitted by either party.⁵

The judiciary's lack of technical expertise is even more pronounced when it comes to technology-assisted review tools that do not depend on familiar keyword strategies. Few vendors are likely to be willing to share the details of their technology with a court for fear of divulging proprietary information to competitors, but even if they did, there is little chance that the judge could comprehend the algorithms. So, while it is no doubt entirely appropriate to permit a party to choose "predictive coding" or any other form of technology-assisted review to collect and review data, whether the tool selected will ultimately produce reliable results is a determination that a judge is ill-equipped to make in advance. See DaSilva Moore v. Publicis Groupe, No. 11 Civ. 1279, 2012 WL 607412, at *5-6, 8 (S.D.N.Y. Feb. 24, 2012).

Judges lack not only technical expertise but also knowledge of the facts that will determine whether a particular discovery protocol will be successful. Again taking the example of a document search, a judge cannot anticipate the most efficient keywords without intimate knowledge of the target entity: how its employees use abbreviations and codes, what words are associated with others in responsive documents. And, because any search is an iterative process, a judge's ruling at the starting point has little impact. Thus, for instance, a judge might opine that one particular seed set of documents is better than another for purposes of initiating a search that utilizes predictive coding or some other form of "machine learning." But because the search tool will be "reinstructed" on the basis of the results of each successive round of searching, the judge's input is ultimately diluted to the point of irrelevance. To have real influence on the search process, the judge would have to be involved at every step, a model that would strain judicial resources as well as patience.

> First, Do No Harm. The admonition to do no harm, derived from a portion of the Hippocratic Oath, could well be taken to heart by judges considering active intervention in e-discovery. Such intervention may not be merely ineffective; it can be downright counterproductive. We do not generally know whether a judicial order has enhanced the efficiency and reduced the costs of a litigation because we have no control against which to measure it. That is, we cannot evaluate the evidence that was lost because the court defined a search too narrowly, nor can we assess how costly a rejected protocol might have been.

We do know, however, that the collateral proceedings required to obtain a judicial determination on a technical matter can be substantial. In one recent case, a judge devoted two full days of hearings to a dispute over search methodology, at the end of which she encouraged the parties to reach agreement, which they did (after numerous additional conferences with the court). Kleen Products LLC v. Packaging Corp. of America, No. 10 C 5711, 2012 WL 4498465, at *5 (N.D. Ill. Sept. 28, 2012).

That the parties were required to devote substantial resources to this dispute is not surprising. The judge had to be educated about the technologies at issue, and courts rightly demand expert testimony in such cases rather than relying upon the representations of counsel. Compare DaSilva Moore, 2012 WL 607412, at *2 (technology-assisted review process requires validation but is not subject to Daubert standard) with O'Keefe, 537 F. Supp. 2d at 24 (evidence challenging search terms required to meet standard of Fed. R. Evid. 702).

> Follow the Money. These are not the only tools available to a judge short of issuing a formal order. While judges who have intervened most actively in discovery disputes have adopted what might be called the command model, the better approach is to emulate the market economy and shift discovery costs to the requesting party in appropriate circumstances.

This has both direct and indirect benefits. The direct benefits are obvious: the responsibility for evaluating whether the benefit of some particular discovery is worth the cost is placed on the party seeking it. That way, the requesting party is no longer free to promulgate sweeping demands, subject only to a court's often arbitrary assessment of whether the discovery sought is proportional under Fed. R. Civ. P. Rule 26(b)(2)(C).

The indirect value of cost-shifting is at least as significant. As courts demonstrate a greater willingness to shift costs, two things happen. First, parties discuss cost-sharing among themselves, recognizing that an agreement minimizes the risk of an adverse court decision on cost allocation. Second, when a party realizes that its adversary may seek to have costs shifted, it is more likely to consider the proportionality of its discovery demands at the outset, as well as to agree to strategies like sampling that will reduce the costs.

Cost-shifting is far from a panacea. It is certainly not available in all cases, since the Supreme Court has observed that "[u]nder the discovery rules, the presumption is that the responding party must bear the expense of complying with discovery requests[.]" Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358 (1978). Furthermore, cost-shifting cannot become an instrument for denying relatively impecunious parties access to the courts. Nevertheless, it is an approach better suited to the problems presented by e-discovery than judicial fiat.

Footnotes

1. See, e.g., Scott A. Moss, “Litigation Discovery Cannot Be Optimal But Could Be Better: The Economics of Discovery Timing In a Digital Age,” 58 Duke L.J. 889, 892-96 (2009); John H. Beisner, “Discovering a Better Way: The Need for Effective Civil Litigation Reform,” 60 Duke L.J. 547, 564-70 (2010).
2. Gideon Mark, “Federal Discovery Stays,” 45 U. Mich. J. L. Ref. 405, 4-5-07 (2012).
3. See Jason R. Baron, “Law in the Age of Exabytes: Some Further Thoughts on Information Inflation and Current Issues in E-Discovery Search,” 17 Rich. J. Law & Tech. 9, 14-19 (2011) (describing spectrum of judicial activism in search protocols).
4. John S. Beckerman, “Confronting Civil Discovery’s Fatal Flaws,” 84 Minn. L. Rev. 505, 513 (2000) (“At the dawning of the age of litigation enlightenment in the federal courts in 1938, with the advent of the newly crafted Federal Rules of Civil Procedure, discovery in civil litigation was intended to be an essentially cooperative, self-regulating process for which the parties would take responsibility, with little judicial intervention required.”); Mark S. Cady, “Curbing Litigation Abuse and Misuse: A Judicial Approach,” 36 Drake L. Rev. 483, 514 (1987).
5. Occasionally, of course, the shortcomings of a suggested keyword search are so obvious that even a judge can recognize them. See, e.g., William A. Gross Construction Associates, Inc. v. American Manufacturers Mutual Insurance Co., 256 F.R.D. 134, 135-36 (S.D.N.Y. 2009) (observing that search of construction manager’s documents for words “budget,” “delay,” and “change order” would be overinclusive).

James C. Francis IV is a United States Magistrate Judge for the Southern District of New York, based in Manhattan. Email: James_C_Francis@nysd.uscourts.gov.