We recently sat down with Judge Cole to discuss the role of discovery in today’s legal system, attorneys who make incorrect representations, the growth of Internet evidence, and what causes judges to reconsider their earlier discovery decisions.
Read on for a transcript of that interview below, lightly edited for concision and clarity, or jump to specific sections using these links:
Discovery Burdens and Proportionality
Logikcull: A very, very small and declining percentage of federal cases ever actually make it to trial, so that means that cases that aren't disposed on a motion to dismiss or motion for a summary judgement are often resolved during the discovery process. Do you think that the discovery process is able to ensure the just outcomes that our legal system aspires to?
Magistrate Judge Jeffrey Cole: That is a really insightful question. Although I have a number of doubts.
I think the answer is yes—although “ensure” is perhaps too strong a word.
For years, it was considered “ungentlemanly” even to try to find out what the other side had. Simply stated, there was no discovery. Then, with the advent of the Federal Rules of Civil Procedure back in 1937, there's been a steady progression and expansion of discovery rules. The idea being, as the Supreme Court has said over and over, to achieve a just result whether by settlement or by trial. So, I think the Rules do, in the main, tend to work as they were designed.
But it seems to me, that in large, complex cases, the only people who can effectively and thoroughly conduct discovery are large clients represented by large law firms or clients who have lawyers who are working on a contingency fee basis. They are the ones that have the resources to deal with the massive amounts of discovery involved in modern, complex litigation. Today teams of lawyers spend enormous amounts of time in discovery, only to have the cases settle years later. But the overall design of the Federal Rules is to achieve a more fair and a more just result. And they have been successful in that regard.
“Today teams of lawyers spend enormous amounts of time in discovery, only to have the cases settle years later.”
Logikcull: You mentioned giant firms throwing armies of associates at document review to get through massive amounts of discovery that smaller competitors might not be able to handle on their own. The 2015 amendments to the Federal Rules took steps to reduce that situation—particularly through the promotion of the concept of proportionality in Rule 26.
Do you think that tweak has had any impact on the way that both judges and practitioners are handling discovery?
Cole: It has had some effect, but not as much as is being touted. The proportionality requirement always existed in the Rules, but it was lower down in the structure of Rule 26. As a result, it didn't get the emphasis by lawyers and judges.
Now, it tends to get more attention than it ever did before. So, what you have are lawyers constantly saying “discovery is not proportional.” So, in every case you have to deal with that concept. But it’s important to recall that to make out a claim of proportionality requires a proper and appropriate showing. As the Seventh Circuit has said over and over, “saying so doesn’t make it so.” Lawyers’ claims are not a substitute for evidence.
“But it’s important to recall that to make out a claim of proportionality requires a proper and appropriate showing... Lawyers’ claims are not a substitute for evidence.”
In most cases, the discovery is generally proportional to the importance of the issue in the case. I don't think that proportionality is causing people to arrive at a different result, but I do think you are seeing more and more people, judges as well as lawyers, relying on the concept.
In a large case, with responsible lawyers, discovery tends to be proportional to the size of the case, and the importance of the issue. But you do see lawyers in very small cases, where proportionality should be considered important, raising the issue as though it were a kind of self-authenticating or defining rule that automatically determined that discovery shouldn't proceed. I don't think that was what the Rule was designed to do.
“Discovery has eclipsed what its goals were and that is to effectuate a fair trial. It's not an end in itself.”
But the courts simply recognized that discovery was really getting out of hand and court after court said so. Courts acknowledge that pretrial proceedings have become more costly and important than trials themselves.
Discovery has eclipsed what its goals were and that is to effectuate a fair trial. It's not an end in itself. Or at least should not be.
Handling Proportionality Objections
Logikcull: To this idea that people will throw out an objection about proportionality, thinking it's a shield from all discovery: What sort of transparency does the court have when one party says “this is excessive, will cost thousands of dollars, and will reap no rewards,” while the other claims “no, this is simple, necessary and not disproportional at all”? How much insight do you have into the technologies and abilities that the parties before you possess?
Cole: You raise an important point and it's one that many lawyers do not pay sufficient attention to. They simply say “discovery should not be allowed because what is being sought is not proportional to the needs of the case.” The other side simply says, “oh yes it is.” The judge is then asked to make a decision in the abstract. This is the point I eluded to before and it’s worth repeating. As the Seventh Circuit has said over and over, “[l]awyers’ talk is not substitute for data.” Phillips v. Allen, 668 F.3d 912-916 (7th Cir. 2012). Case after case, both in our Circuit and throughout the country have emphasized the need for proof. Hence, saying so, even with vigor, won’t cause a judge to conclude the discovery is not proportional.
I remember a couple of my recent Opinions in which unsupported statements were made to me by lawyers, which, upon further investigation, turned out to be factually false. It isn't that the lawyers were lying, it's simply that they were repeating the statements of their clients. Often, the latter is not true. And lawyers should not always accept at face value what they are told.
“[L]awyers should not always accept at face value what they are told… [I]f you’re going to represent something to a judge, you ought to make sure that it’s true.”
Recently, an international company who was a party in a lawsuit gave me a two-page affidavit of one of their in-house counsel, who was high up in the company. They wanted her to be able to look at certain documents, which she couldn't do under the then Protective Order. The lawyers’ brief insisted that if she were able to look at the documents she would never tell anybody in the company what she observed. I went to the company’s website and her website and found that a large percentage of what she told me in her affidavit simply wasn't true. That's a long-winded way of saying if you're going to represent something to a judge, you ought to make sure that it's true. The case I have in mind is Silversun Indus., Inc. v. PPG Indus., Inc., 2017 WL 5127321, at *1 (N.D. Ill. 2017).
Logikcull: If someone is giving an affidavit as to what is possible in discovery, how expensive something will be, or what technology is available, would that be something that you would require to meet a Rule 702 or Daubert standard? Or, would you just take it on the value of the affidavit?
Cole: I often allow the affiant to be deposed as I did in several recent cases. The depositions in each case were illuminating and revealed substantial inconsistencies between the deposition testimony and the affidavits.
So, I’m a big believer in being able to test the truth of what's being said to a judge and opposing counsel when people file affidavits. Allowing the other side to take a limited deposition or conduct some further inquiry of the affiant or the declarant is, in my view, important. In each of these cases, I've found that the ability to cross-examine yields significant results, not always in favor of the person who's giving the affidavit.
“I’m a big believer in being able to test the truth of what's being said to a judge and opposing counsel when people file affidavits.”
Logikcull: You mentioned to me before that most of the disputes before you are resolved by the parties themselves. As a judge, how do you encourage parties to work out disputes amongst themselves rather than bring every disagreement before the court?
Cole: One of the things that I suggest doing that almost no one does, is, when lawyers come in and present these often involved explanations of what occurred, I ask them why they let it get so far before bringing it to the attention of a judge. They routinely say they didn't want to bother me. Unfortunately, letting things go for a long period makes it even harder for the judicial officer to reconstruct the history of what happened.
I've tried to explain to lawyers to talk with each other early on in the case and not to write these interminable emails that go on for ten, fifteen, twenty pages about their disputes. Rather, just pick up the phone and talk with each other. Lawyers like writing emails that always tend to be disputatious and confrontational. Judges don’t like them and tend to be unwilling to spend the time that is needed to try to reconstruct the months that underlay the wrangling. So I tell people to talk. But I must confess, my pleas are often ignored.
“I've tried to explain to lawyers to talk with each other early on in the case... [J]ust pick up the phone and talk with each other.”
I recently had people come in that couldn’t seem to resolve anything. I invited them to either sit down in my courtroom or go into my office and talk about what the issues were. I have found that works extraordinarily well. I can't do it every time, but I've done it, and it's been fairly effective.
Mandatory Initial Disclosure
Logikcull: The Northern District of Illinois is one of the two district courts that are participating in a three-year pilot program, which seeks to reduce the cost and delay associated with discovery, by making sure that parties disclose certain information at the start of a matter. Has that had any noticeable impact so far, in your view?
Cole: I think it's too early to tell, and I can't be certain if the lawyers are abiding by it the way it was intended. So, I think the jury, so to speak, is still out on that. In theory, it is a great concept. Ultimately, it all hinges on whether the participants in the process are willing to comply with the Program’s rules. But it's only in the first year of a three-year trial, so we've got a ways to go.
Motorola Solutions and Reconsidering the Scope of Discovery
Logikcull: So, I have a question about an opinion you recently published in Motorola Solutions v. Hytera Communications, and obviously you don't have to discuss the details of that case—
Cole: Was that the one where I said I initially made a mistake?
Logikcull: Yes. You mentioned that when you set out the scope of initial discovery, it was “more honored in the breach than the observance” and decided that enough was enough and had to reel it back. Can you walk us through what motivated you to change your mind? What are the things that trigger judges to reconsider earlier scope rulings?
Cole: In the case you are referring to, there was no motion for reconsideration. After I indicated to the lawyers in court what I was thinking about doing, I thought more about what I had decided and what I had said. I concluded that my initial views were mistaken.
“You find case after case in which judges say, "You're entitled to get what the rules allow you and no more." Unfortunately, that concept is seldom followed.”
I concluded that the parties should not be allowed to even get to the questions of the applicability and meaning of Chinese law and whether an opposing party could effectively search the other side’s computers. What they wanted to do simply wasn't relevant to the question at hand. The case is Motorola Sols., Inc. v. Hytera Commc'ns Corp., 2018 WL 2254790, at *3 (N.D. Ill. 2018).
You find case after case in which judges say, "You're entitled to get what the rules allow you and no more." Unfortunately, that concept is seldom followed. That's just the way that discovery is. Plaintiffs are trying to get more than they are entitled to under the discovery rules, and often the defense wants to get as little as it can get away with. It's a continuing struggle.
Logikcull: You talk about that tension in that opinion as well—the idea that the parties are entitled to an opportunity to investigate relevant facts, but also that the court is bound by the Rule 1 imperative to ensure just, speedy and inexpensive determinations of the action.
Cole: Right. Rule 1 of the Federal Rules of Civil Procedure requires that the Rules be construed so as to achieve those results.
The Importance of Attorney Input
Logikcull: So, it's always a balancing act as a judge, dealing with both imperatives. How do you go about doing that?
Cole: That's a hard question, and I'm not sure there's an easy answer —you do the best you can. You hope you're getting the best input that you can from both sides, because without that input, the court—save in rare circumstances—just cannot function adequately.
“You hope you're getting the best input that you can from both sides, because without that input, the court... cannot function adequately.”
That isn’t just my opinion. It’s the articulated opinion of Holmes and Brandeis and Cardozo and Posner and all of the great judges that have come before.
You can think you know, in the abstract, a good deal about a good many things. But you really know very little about any particular case – especially in the early stages. The lawyers and the parties are the ones who presumably know the case. But they, of course, are playing a partisan role.
“Judges really and necessarily depend on the input from lawyers, whether they acknowledge it or not. You have to patiently educate the judge...”
The reality is if they don’t give you accurate information, or if you don’t assimilate it effectively, somebody's going to get hurt and the system of justice certainly won’t function as it was designed to do.
And so, judges really and necessarily depend on the input from lawyers, whether they acknowledge it or not. As Justice Holmes said, "the law is made far more by the bar than the bench." And that's really true.
So, you have to patiently educate the judge and make sure the judge knows what he or she has to be aware of and appreciate the limits of what the judge knows. If the judge thinks he or she knows everything, that’s unfortunate. You can only try to do the best you can. Be patient and undeterred in your ongoing efforts to educate the court—no matter how difficult the judge makes it for you.
New Technology and Digital Evidence
Logikcull: We're producing a massive amount of new information all the time. Unlike in the past, a lot of it is electronically generated and stored. You have huge amounts of potential evidence, but it's a double-edged sword. It can be an incredible burden when you're trying to deal with that during litigation, as well as an incredible opportunity to find the smoking gun, or just a pile of relevant evidence, that in the past wouldn't have existed. Are the bench and the bar prepared to handle the massive amount of new information available to them?
Cole: I think so. The older lawyers are often not as conversant and comfortable with the newer technology as the younger ones. The younger lawyers have grown up with all the new technology are just more familiar with it.
But I think the problems that exist are really no different than the problems that existed with earlier forms of evidence. The same basic issues and questions still exist. It's just how you apply those rules to the new media.
But judges and lawyers must learn the new technology so as to properly apply the discovery and evidentiary rules. Happily, the extant rules have surprising vitality.
“The same basic issues and questions still exist. It's just how you apply those rules to the new media.”
Logikcull: Those rules have been evolving as the world has changed as well.
For those attorneys who haven't been following the latest amendments to the Federal Rules of Evidence, which were updated to make authenticating internet or digital evidence easier. How would you say these new rules impact the treatment of electronic evidence?
Cole: Well, the Rules of Evidence already determine what is admissible and what is not. The problem is how to go about proving what you need to prove or defining what you need to prove that maybe you didn’t have to prove before or vice versa.
“It doesn't matter the form the evidence assumes or its origin. Hearsay is still hearsay.”
One of the most difficult problems is applying the authentication rules to the internet and new technology. Relevance is relevance and technology has not change either the definition or questions of admissibility. It doesn't matter the form the evidence assumes or its origin. Hearsay is still hearsay; so unless the Rule defines something as non-hearsay, you're still going to be faced with determining what is and what is not hearsay.
Authentication will still continue to be a separate problem. And satisfying one rule but not the other does not mandate admissibility. But you're right, there have been some additions, and there will be more that deal with the emergence of how things are kept and maintained. It's just different, but I don't think that the rules are so vastly different that people can't cope with them.
Logikcull: The Rules 902 authentication standards were recently updated. You've written that they boil down to the same question: is this evidence what it says it is? These updates might not dramatically change anything; instead, they’re just going to relieve a step in the process...
Cole: That's right. Years ago, there was a district court case in Texas that said “hardly anything on the internet is worthy of belief.” The Seventh Circuit long ago cited that case and said the same thing. Then over time, it never got cited again, because the idea it expressed is not thought any longer to be true.
“I've used the internet in looking up what had been represented in affidavits to me only to find out that what was on an authentic website was totally different...”
While much that is on the internet is certainly inadmissible, there’s a good deal on the internet that is accurate and helpful. Indeed, Opinion after Opinion routinely cites the internet to support a particular proposition.
I've used the internet in looking up what had been represented in affidavits to me only to find out that what was on an authentic website was totally different than what the affiants were telling me.
I simply said in Opinions that the affiants weren't telling the truth as evidenced by their own contrary statements on social media where the authenticity of the applicable websites was undisputed. The case I’m referring to is FTC v. Advocate Health Care Network, 162 F.Supp.3d 666 (N.D.Ill. 2016). Another case is Silversun Industries, Inc. v. PPG Industries, Inc., 296 F.Supp.3d 936 (N.D.Ill. 2017).
It's a different world, and how you prove things has understandably gone through changes. The evidentiary rules don't change; it’s how you now prove things under those rules that has required adaptation.
Advice for the Bar
Logikcull: How would you evaluate attorneys’ ability to handle this new world of digital evidence and discovery generally? What would you wish that they are doing more of that they're not currently doing?
Cole: My experience is that lawyers are quite well versed in how the rules work. What I would wish more of is, as I have said, that lawyers talk to each other in a more decent, calm, and cooperative way.
I was on a panel recently with Judge Bauer on ethics. He said the difficulties that you see among lawyers are largely the function, not of the people so much, but of the size of the bar and the size of the legal community.
“People tend to act more cooperatively and more decently when they know if they're nasty to you today, they're going to see tomorrow...”
If you practice in a community where the size of the bar is smaller, you interact with the same lawyers with more frequency than if the bar is quite large. In that context, a good many of the difficulties that you have in say Chicago or New York, you see less of where the bar is smaller. I think that's true. People tend to act more cooperatively and more decently when they know if they're nasty to you today, they're going to see tomorrow and perhaps you’ll be in the superior position.
Logikcull: How would you judge the parties that appear before you in terms of their ability?
Cole: I think the lawyers who appear before me, in the main, are well-prepared, decent, honorable, and they're trying to do the best for the client. The only objection that I have is the unnecessary contentiousness that seems to be more and more in play.
There's a wonderful case, where the judge said, "I'm well aware that the abuse of legal process most often occurs during discovery. Lawyers do things during discovery that they would not dream of doing if a judge were present." Unfortunately, that observation tends to be true.
What do you do about it? I'm not sure there's a lot you can do about it. You can sanction people if they're terribly abusive, but sanctions have never played a great role in the trial process - judges generally don't like them -- they can create more work, and there's a belief that they have a limited value. There are continuing efforts that seek to make the bar more responsive and generally better, and hopefully it works out.
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