Electronic discovery continues to be a topic that takes up a significant amount of time and attention of parties engaged in large-scale litigation filed in the federal courts. As the prevalence and amount of electronic data continues to expand, the demands on the courts continue to increase.
As a result, there has been much attention in recent years to the rules that govern electronic discovery. The Federal Rules of Civil Procedure were amended in 2015 in an attempt to improve the framework for addressing issues relating to electronic discovery. An express provision was added to the rules so that courts could consider whether discovery requests were “proportional” to the needs of the case. Likewise, the rules were amended in an attempt to avoid draconian sanctions for what might otherwise be mere negligent failures to retain electronic information.
While the opinions regarding these rule changes have been mixed, many commentators have concluded that they have not had that much effect with respect to practice in the federal courts. Federal judges must still struggle with questions such as what is “proportional” in terms of electronic discovery. Likewise, parties and courts must still grapple with a range of issues that are largely technical, rather than legal, in nature.
Given these ongoing struggles, it may be time to consider whether the federal courts should establish an office that could be staffed with technical experts familiar with electronic discovery issues. These experts could assist district and magistrate judges with technical issues that arise in disputes over electronic discovery, saving judicial time and potentially leading to more just resolutions.
Frequently, judges comment that having the parties’ own technical experts present at hearings on electronic discovery issues is useful in resolving complicated matters. Having access to their own independent technical experts might have the same beneficial effect. Moreover, these experts could independently investigate technical issues by interacting with the parties and their experts without involving the court, thereby conserving judicial resources.
Independent experts could be useful in assisting courts with issues such as assessing the burden of particular discovery requests so that courts can determine whether they are “proportional” to the needs of the case. The experts could also provide opinions on whether particular discovery requests lend themselves to cost sharing, given the balance of costs and benefits inherent in the requests. Likewise, technical experts could assist the courts in determining whether preservation techniques or search efforts were reasonable and adequate.
The use of technical experts may also have the salient effect of spurring innovation, such as increasing use of technology assisted review in the production of documents. In sum, there are many ways in which affording judges easy access to independent technical expertise may increase efficiency and improve outcomes in federal court litigation.
The rules already contemplate that courts may appoint independent experts to assist them with complex technical experts, and in fact in some instances courts have utilized such rules to appoint experts on electronic discovery. For example, Rule 706 of the Federal Rules of Evidence provides that the court may appoint its own experts upon motion of the parties or on its own. The rule further provides that in civil matters, the court may assess the parties the costs of such expert assistance.
However, the frequency with which electronic discovery issues arise in modern litigation in the federal courts may warrant a more permanent solution. Likewise, the fact that such issues typically concern matters of procedure rather than substance, arguably counsels in favor of a greater use of independent experts.
As a first step, a small group of experts could be retained on a test basis to serve as a resource for judges confronting these issues. Whether and how to use such experts would be up to individual judges. Over time, the success of using such experts could be assessed based on demand among the judiciary and outcomes in individual cases. Given that the efforts to date to address such issues have not been as successful as some of the proponents had hoped, it may be time to consider whether the use of independent experts could increase the efficiency with which the federal courts address matters relating to electronic discovery.