By Patrick Burke
October 19, 2009
The 2009 Masters Conference will perhaps be remembered most fondly for the second day keynote by US Magistrate Judge John Facciola, entitled “Oh Brave New World that has such Creatures in it. Competence, Lawyers, Judges and the New World they Inhabit.” The judge was as insightful and humanist as we have come to expect from one of our foremost thinkers on electronic discovery. He began his talk with a judge’s-eye-view of the challenges of imposing sanctions for failure to meet electronic discovery obligations. His overarching conclusion was that bench and bar must move toward greater cooperation in the area of electronic discovery. In order to do so, lawyers must educate themselves to a level of competence on information technology related to discovery.
Judge Facciola explained why he was generally hesitant to impose sanctions for electronic discovery, and required a showing of bad faith. He said “my success is a function of how much I can solve problems,” and “if I run around sanctioning everybody I can get my hands on, it sharply reduces that capability.” He noted that by working with parties to fix an eDiscovery problem, a judge also avoids the considerable disincentives that come with preparing a sanctions decision and order. These disincentives include the judicial resources that must be expended to make often vexing findings of fact, including determinations of where a party acted within the continuum from “negligence” to “bad faith.” He urged that a judge should be humbled by the power to issue a sanction such as an adverse inference instruction, which in some cases theoretically creates just one issue: whether there is enough room on the verdict form for that many zeroes.
On the law, as well, a judge can find himself susceptible to reversal, for example, if relying on his inherent authority to control the court’s docket. For example, a sanction based on the court’s inherent authority can be reversed if a reviewing court finds there already is a civil procedure rule on point with the behavior being sanctioned. He noted that contempt in civil cases is designed to be remedial and so a judge’s powers must be exercised in a remedial fashion. He observed that the rapid changes in information technology and communications are exposing unexplored areas of the law (e.g. personal jurisdiction over a client with data in many locations). Speaking of the Sedona Conference Working Group 1, he observed that “every session blows up another chapter in the civil procedure book.”
He brought all these arguments to support his call for the legal profession to come to grips with the destabilizing effects of the exponential growth of the volume of electronic data stored by corporations and individuals. He suggested that both bench and bar move away from an adversary approach and embrace problem-solving and humility. While the Judge himself continues to invest long hours in reviewing electronically stored information in camera on privilege motions, he doubts whether he or any judge can continue to do so for long. He questioned whether, given limited judicial resources, the adversary system as now practiced in federal courts can survive in its present form. He called for an effort toward humility in this area by both bench and bar, with judges solving problems rather than sanctioning, and counsel becoming knowledgeable enough to avoid either overpromising or underpromising when it comes to the pace and scope of their eDiscovery productions. He called on law schools to integrate electronic discovery into first-year civil procedure classes, rather than to isolate it in specialized law school courses. “In this area, the practice of law is becoming more and more a cooperative exercise.” Which is why, in this Brave New World, Judge Facciola continues to warn of the practical necessity of a cooperative future for eDiscovery practice.