Closing The Loop

Cooperation, Magistrate Judge David J. Waxse has noted, is written into human DNA, an evolutionary adaptation that has emerged over millennia—though one might not realize it when looking at contemporary litigation. Despite the burdens of modern litigation, or perhaps because of them, cooperation can be “a solution to the problems of increased costs and delay in litigation,” Judge Waxse argues.

waxse-thumb.jpgIn part two of our interview with Judge Waxse, Logikcull discusses the tools judges have to ensure just, speedy, and inexpensive resolutions, why Judge Waxse is skeptical of the recent emphasis on proportionality, and how the growth of ESI is changing the way lawyers practice. Part one, in which the judge discusses discovery disputes and the need for culture change in the legal practice, can be found here.

Logikcull: What would you say to attorneys who—maybe not explicitly, but at least implicitly through their actions—argue that in an adversarial system like ours, being difficult, being slow, and making things expensive for the other side is a part of their zealous advocacy for their client?

Hon. David J. Waxse: I would say they're just wrong. The system, going back to Rule 1, is setup to get just, speedy, and inexpensive results. Lawyers who see it as their job to make it difficult for the other side to get it resolved—in other words, to work against Rule 1—they’re just wrong.

Look at it from the client's perspective. They really want just, speedy, and inexpensive. I’ve never had a case management conference, where I required clients to be there, that the clients don't immediately agree, “Yes, we want just, speedy, and inexpensive!”

One moment at the Duke conference that I'll never forget: I was on the panel talking about cooperation and there were a lot of general counsel there from major corporations. This one woman said, “Judge I don't think you understand. When we have big litigation, we hire aggressive attorneys to handle our matters and those attorneys just don't have cooperation as part of their methods.”

I mentioned to her, “When I practiced law, if my general counsel I was working for said, ‘I want you to handle the case in this manner,’ I would have handled it in that manner.” I asked her if she’s tried telling the aggressive attorneys how she wanted the case handled. No, she hadn’t thought of that. She just hired attorneys and let them go. I think if you get clients and judges and lawyers all on the same path of just, speedy, and inexpensive, you can get these things resolved in that manner.

Logikcull: In terms of just, speedy and inexpensive resolutions in the discovery context, a few weeks ago you were discussing the use of joint discovery repositories in an ACEDS webinar. Can you tell us a little bit of background on how that process went, whether it was successful, why it’s not used more often or where it might be more appropriate in the future?

Waxse: I think one thing your question assumes that it’s not used very often and I don't think we know because there's no reason for there to be a record of those kind of things unless we get to the court in a dispute situation. In the cases where I've urged it, it seems to have worked really well. The attorneys have told me, at the end of that process, that it does exactly what we hoped, which is if you've got a mass of data that’s going to have to be analyzed, there's really no need to have to create two masses of data.  If you can get the proper protective orders in place so you’re not worrying about losing privilege or losing confidential information and you agree on what it is you're trying to find in the data and you hire one data set of experts to carry out the searches that you want carried out, it just turns out it’s cheaper than paying two set of experts, twice the money to maintain two databases. I have not used it very often because it's only really worthwhile in big cases, but I have used and it seemed to have been effective.

Logikcull: The recent change to Rule 26 seems to emphasized the role of proportionality in the discovery process.  Do you think that tweak has impacted the way judges are dealing with discovery post-amendment?

Waxse: I don't see it. There certainly are a few more cases than there were before...

[Judge Waxse goes on to discuss a discovery dispute in which one side argued that costs could reach $30 million, raising objections over proportionality and the possibility of a hearing on the issue. Judge Waxse urged the parties to make use of sampling, staging and a cooperative approach in order to reduce potential costs. At which point...]

A couple weeks later I got a call and they said that “We did not need to complete the hearing, we have now decided to use sampling, staging of discovery, and cooperation. So, it looks like, by agreement, it’s going to cost thousands—not millions.”

If you were just faced with the motion now saying, “We object to this is discovery because it's not proportional based on the cost,” how are you supposed to figure out what the costs are? If attorneys could agree on what the cost is, they wouldn’t have had the dispute in front of you. But when they disagree and you’re going to have to make a decision, you’re almost in a situation where you’re going to have to do discovery, as in the case we discussed just a moment ago, to figure out where they came up with the $30 million number.

"If you were just faced with the motion now saying, “We object to this is discovery because it's not proportional based on the cost,” how are you supposed to figure out what the costs are?"

To me, it's a good theory but I haven’t figured out how to easily make it work. Just take each factor and look at them. What’s the importance of the issues? If the parties could agree on that, they probably wouldn’t have litigation.

If the judges are supposed to resolve what is important, what are you going to consider? The normal element of due process requires that you have a presentation by each side with admissible evidence so you can make the right decision. It's not something you can do easily or quickly, so that's why when I hear people saying proportionality is going to really help cut down our costs and time, I'm not sure.

Logikcull: One of the things that we see as a discovery platform  ourselves and in some of the discussions we've had with judges and practitioners is that there's almost no transparency around cost in the discovery context. A lot of vendors treat their costs as trade secrets so that if there's not a dispute before the court, no one really knows how much things are going to cost or how high the bill might be for a certain procedure or approach. Do you think that's something that is of concern or not really that big of an issue?

Waxse: No, it's clearly an issue. Going back to Rule 1 again, if it’s going to cost too much you’ve got to figure out a way to control those costs.  I don't think there's any simple answer here but there are a lot of things you have to work on. One is, if you can figure out how to do it, work on proportionality. If you can get them in the right mindset, work on cooperation.

Sometimes you just have to not sit back and let lawyers litigate. You’ve got to get involved as a judge and keep track of what they're doing and keep them on the right path to get the case resolved.

"Sometimes you just have to not sit back and let lawyers litigate. You’ve got to get involved as a judge..."

Logikcull: You’ve said that Daubert requires courts to act as gatekeepers when dealing with disputes over discovery technology. Can you talk a little bit about your position and your thinking behind that position?

Waxse: My position is definitely we should comply with the rules we have and Daubert is codified in Rule 702 of the Federal Rules of Evidence. What's amazing to me is—and Judge Peck and I have debated this numerous times—Rule 702 applies to all matters in federal court except a limited number of things and discovery is not in that limited number of things that it doesn't apply to.

So, all I'm suggesting is we should comply with the rules we have and there's a reason for the rules we have. That’s to try and ensure the integrity of the process when you're using expert witnesses.  If you can’t get something worked out by an agreement and you’re going to have a contested hearing, I think both sides, if they're using experts, have to make sure they're complying with Rule 702, which codifies the Daubert factors.

To me, it doesn't have to be a huge cost; it sometimes turns into a huge cost because lawyers don't approach that problem in a cooperative manner. They can certainly spend a lot of time and money fussing about it, but it just seems to me it's one more thing that you have to look at in the context of just, speedy, and inexpensive.

The just part there, from my perspective, means using due process to get to the end result and due process requires that you have valid, admissible evidence to make a decision if there's no agreement. That's where I think it just gets back to following the rules when they apply to discovery disputes. If you’re having evidence presented, that needs to be properly admissible under the federal rules.

Logikcull: You've been on the court since 1999 so I’m sure you've seen a lot of changes over that time. Have you seen progress towards getting more just, speedy, and inexpensive results particularly in the discovery sphere? Or, is this still an issue everyone's grappling with?

Waxse: It’s still being grappled with but I think it's being accomplished a lot more than it used to be. Part of the problem initially, when I went on the bench there were hardly any cases dealing with electronically stored information. As we developed the law in this area, it seems to me that we are making progress and if we’re focused on the right goals, we’ll get where we’re supposed to be.

"As we developed the law in this area, it seems to me that we are making progress and if we’re focused on the right goals, we’ll get where we’re supposed to be."

Logikcull: Speaking of ESI, there was not as much in 1999, definitely more now and probably a lot more in the future. One of the things judges have brought up to us repeatedly is the growth of ESI connected to proliferating electronic devices, more social media, more electronic documents, and then the growth of the Internet of Things. So, when your thermostat is making records of everything you do, when your industrial sensors are producing ESI, that leads to massive growth in the amount of data that's available and in the amount of data that could become an issue during litigation. Is this something that you're concerned about personally? Do you think courts and attorneys are prepared to deal with these issues?

Waxse: Yes. It’s clearly a concern. I think a lot of courts are dealing with it.

It seems to me it gets back to those basic issues of narrowing the issues in your case, cooperating as you gather information about those issues, and it seems to me that it’s something that can be resolved. It’s just going to take some effort and knowledge.

I tried a case a few years ago that involved a trailer truck running into a pickup out in western Kansas. The issue was whether the driver had been driving too long and driving too fast. They tried the case simply with the testimony of the two drivers and the highway patrolmen.

When they finished I said, “Why didn't you get the ESI in this case?” They said, “What are you talking about? ESI? It’s a truck-wreck case.”

Well as I understand it—it was a national trucking company—they equip all of their tractors with all kinds of electronic sensors keeping track of the time, the speed, the location. This factual dispute about how fast the guy was going and how long he’d been driving, it was probably right there in the ESI if they had just gotten it. They hadn’t even thought about it.

I think the same thing is still happening because we keep expanding the situations where there’s electronically stored information. It’s really tough for attorneys to keep track of all that. [Also] I think there's a lot of misinformation out there about what you can collect, what you can save, and what you can’t. Lawyers are clearly having to become experts in this area if they're going to provide competent representation.

Logikcull: One final question: You retired in 2014 and then almost immediately re-entered in recalled service. A lot of the other well-known eDiscovery judges either have retired or will probably be retiring in the near future. Where do you see leadership on these issues moving in the decade or so ahead? Do you think there's going to be a bit of an expertise gap or do you already see new minds emerging?

Waxse: I'm fairly confident things are going to continue to get better. Both the American Bar Association and the Sedona Conference are spending a lot of time and energy trying to improve the situation with ESI. I think when you get focused on the right goals, there are ways we’re going to be able to solve this. It’s just going to take a lot of cooperation and a lot of knowledge that has to be gained, that many attorneys and judges don’t have at this point. It something we can do. We've just got to get focused and do it.

This post was authored by Casey C. Sullivan, who leads education and awareness efforts at Logikcull. You can reach him at [email protected] or on Twitter at @caseycsull.

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