This post is a companion piece to an ACEDS webcast Logikcull presented yesterday on sanctions and the new e-discovery rules amendments. The recording is available here.
The discovery sanctions that attract the most rubbernecking generally arise from those rare spectacular failures to preserve evidence, or overt attempts to destroy or withhold it.
But there is a less sinister, but ultimately more corrosive, sanction-worthy behavior that is, some would say, rampant -- and judges before whom it occurs are both growing increasingly intolerant of and finding more creative ways to kill it.
This behavior could be described in broad strokes as "failure to cooperate," but, more specifically, it can be identified as ignorance-driven obstinacy, where lawyers choose to butt heads over discovery because they either understand discovery abuse to fall under the umbrella of zealous advocacy, they lack the technological competence to appropriately address e-discovery, or some combination thereof.
With the emergence of guidance and law that is said to emphasize cooperation, proportionality and technical competence (the effective-today Federal Rules amendments, but also California Formal Opinion No. 2015-193 and Comment 8 to ABA Model Rule 1.1), the judiciary appears to have its collective antenna better attuned to, and to be showing less tolerance for, antagonism and gridlock. Indeed, while it was once the assumption that the bar was outpacing the judiciary in terms of e-discovery proficiency, that perception -- and perhaps the reality -- has flipped, where it now appears to be practitioners who, on the whole, are taking heat from the bench for their lack of technical wherewithal. Consider the rise of thought-leading epicenters in the federal courts of Northern California, Manhattan and Pittsburgh. And see the recent Exterro study that found not one of 22 federal judges agreeing with the assessment that “The typical attorney appearing before me possesses the... knowledge (legal and technical) required to effectively counsel clients on e-discovery matters.”
To counter this abuse, judges are reaching deep into their bag of correctives for a tool that is more effective than fines or cost-shifting: shame.
The godfather in this regard is recently retired San Francisco Superior Court judge Richard Kramer, who would frequently order parties fighting over discovery to bring cookies for each other because, in his words, "you can't act like a jerk when you're eating chocolate chip cookies."
Speaking to The Recorder in 2011, he explained:
"The cookies have to be good cookies; not like a bag of Chips Ahoy, but something that’s sold by the cookie... People start to get hot and heavy, and I’ll say, 'Take a bite of your cookie, will ya?' It just changes the thing. The lawyers go, 'Oh look, we’ve got cookies. It’s just like school.' I'm not kidding you.