Over his 18 years on the bench, Magistrate Judge David J. Waxse, of the District of Kansas, has authored many noteworthy opinions on eDiscovery, including on the production of documents in their native format and the inclusion of metadata in such productions. Judge Waxse is a frequent advocate for cooperation between parties during litigation, in order to achieve Rule 1’s promise of a “just, speedy, and inexpensive determination of every action.” He retired in 2014 and has continued in recalled service ever since.
We sat down with Judge Waxse to discuss his thoughts on the role of discovery in today’s courts, why our legal culture needs to change, and how he gets lawyers to cooperate. (Hint: It involves the threat of videotape.)
This is part one of a two-part interview. The second installment, in which Judge Waxse discusses his skepticism about proportionality, the court’s role as a gatekeeper, and the ever-expanding world of ESI, can be read here.
Logikcull: Our first question is on the discovery process in today's justice system. As I'm sure you're aware, there's a small and ever declining percentage of federal civil cases that make it to trial today. For a lot of those cases, the ones that aren't decided on motion, discovery becomes the de facto dispute resolution mechanism. First, do you think that’s a fair assessment? If so, is the discovery system capable of ensuring that there are just outcomes?
Hon. David J. Waxse: Well, I don't agree with the assessment. I agree with the part about no trials, but our goal is not to have more trials. Our goal is the just, speedy and inexpensive determination of the action, from Rule 1.
So, if you're looking at that goal, how do we get there? If we're not doing it by trial, what are we doing? In the vast majority of cases, they’re getting resolved by settlement. Some cases require some discovery before settlement, a lot of them don't.
"Our culture needs a lot of change in that overall view of litigation. Discovery plays a role in it, it just doesn't have to be the major role."
If attorneys approach the case as trying to get to the goals of Rule 1, there are a lot of ways to do it. Cooperation is one, but simply being open with the information, and not playing games about hiding information, can be very helpful in getting the case resolved without having to do a huge amount of discovery.
I'm afraid I'm considered too cynical in some of these situations, because I practiced law for about 30 years before I went on the bench. Primarily, people practice law today in order to make money. There are not a lot of lawyers that are doing it just to help society resolve disputes.
With the hourly billing system, and I have put this in some articles, there is a conflict with the client because the lawyers’ goal is to get as many clients and make as much money as they can and the courts’ goal is to get to just, speedy and inexpensive [resolutions]. Our culture needs a lot of change in that overall view of litigation. Discovery plays a role in it, it just doesn't have to be the major role.
In some of the cases, I don’t see discovery having very much to do with the resolution in the case. One of the things we've done in our district is that we have a set of guidelines. Among the things we talk about in those guidelines, and one of the things that counsel so often forget, is that discovery is to be about disputed factual issues. So we suggest council always start the litigation process by making a list of what factual issues they think are in dispute.
It’s amazing to me; I'll get discovery disputes where I don't understand why they're doing discovery on that point because it doesn't appear to me to be in dispute. They’ve not really analyzed the case to determine if it’s actually in dispute; they just do what the normal routine is: You get a new case, you start doing discovery—without an analysis of where you need to do discovery.
In fact, one of the other problems is that we're too reliant on forms. It’s so much easier with electronic systems to send a form and get discovery out. Too often you can see that nobody's paying any attention to what the discovery ought to be. They just send out to the employment log set of forms. And yet if you sit down and look at what's really at issue, there doesn’t need to be that much discovery. So, there are a lot of things to be done to get to just, speedy and inexpensive other than having a big fight about discovery.
"[O]ne of the other problems is that we're too reliant on forms... Too often you can see that nobody's paying any attention to what the discovery ought to be."
Logikcull: We spoke to Judge Facciola awhile back and he argued that the cost of discovery risks running an entire economic class out of the federal court system for lack of means to engage. Do you think that's an issue a lot of litigants run up against?
Waxse: I don't know about a lot, but it certainly happens that people get priced out of federal court litigation. I think if we focused on these suggested solutions that are now supposedly in place with the revised discovery rules, I think we could get a handle on this problem.
One thing that I think is not looked at as a solution but should be is, now that the vast majority of information in the discovery process is electronic, there are tools you could use that make discovery cheaper. When we first started 20 years ago having electronically stored information, the only way attorneys had to deal with it was to sit down at the screen—or in some cases, print it out and sit down with the paper—and review everything with human eyes on it. That can have huge cost that when you start charging hourly rates for attorneys sitting in front of computer screens just to look at electronically stored information. You get this terrible increase in cost that result in people not being able to afford it. But, if you've gotten a good system set up where you narrow the issues to those issues that are actually in dispute, you use the computer assisted review to find the information relevant to them. It can be cheaper as opposed to more expensive.
Logikcull: In addition to technological tools like TAR and CAR and narrowing discovery to actual issues in dispute, what other tools do courts have at their disposal to make sure that the costs don't run away and don’t foreclose just resolutions?
Waxse: Well, there are a lot of tools today. One of the things that came out of the Duke conference a few years ago is that we did not do a good job with judges taking an active role in case management. There are a lot of things judges can do in managing a case to ensure that it doesn't get out of hand cost-wise. And there are a lot of judges that don't see that as their roles so they don’t play that role. For those of us that do see that as our role, one of the things that I have been pushing for the last eighteen years is that cooperation can be a way to get to just, speedy and inexpensive.
"There are a lot of things judges can do in managing a case to ensure that it doesn't get out of hand cost-wise."
The question is how do you get people to cooperate? One way that’s used is to sit down with lawyers at the start of the case and talk about cooperation as the method you want being used to resolve this case.
I've developed some techniques over the years that I think helped me in this regard. One of them is when I get lawyers who say they can't cooperate and get this result, I’ve often said “I want you to try one more time. This time, I want you to videotape the conference and you can send me an agreement or the videotape.” I've never had to watch a video tape.
Some other judges tried this and complained to me. This one judge from New Jersey told me she ended up with an eight-hour videotape. My experience has been lawyers in that situation seem to be fully capable of cooperating and getting to a resolution.
I used to say I don't understand how that works, but I was on a panel with a judge who had an undergraduate degree in Physics and she said she understood how it works: “Lawyers are like particles in physics. They change when observed.”