US Magistrate Judge John Facciola has recorded a podcast interview with Sarah Haynes of IQPC. This follows a very successful judicial panel which Guidance Software organised at IQPC’s e-disclosure conference in London in May (see The discovery of disclosure commonality with a trans-Atlantic judicial panel)
The interview can be found here. You have to register to access it, but it repays that small effort.
Judge Facciola said that US judges now manage cases from their inception, including participation in the discovery process. Magistrate Judges, whose role includes trying to settle cases, are applying the same approach to the discovery disputes – trying to settle them. You cannot, he said, just sit there and wait for something to happen, but must be very proactive in dealing with matters in an anticipatory way. Judges cannot exempt themselves from the duty of competence which they expect from the lawyers, and the Federal Judicial Centre is holding two day conferences with a particular focus on discovery.
The rise in sanctions shows that lawyers are getting over their heads very quickly. The main vices are over-promising and under-promising – offering to do something which cannot be done or describing as impossible something which is in fact within their power.
Judge Facciola was asked if he was aware of any judicial education in the UK. He was properly politic in his answer — he had heard from Master Whitaker as to what he was doing and had just read an excellent speech by Judge Brown. Lord Justice Jackson had covered the subject comprehensively in his report.
I can be blunter than this, unconstrained by Judge Facciola’s tact and politeness. Master Whitaker’s work and the “excellent speech” and other input by Judge Brown just about defines what we have in the way of judicial education on the subject of e-disclosure. Lord Justice Jackson, whose role thus far has been as investigator and reporter, and whose influence is yet to come, said in his Preliminary Report that the lack of judicial education on electronic disclosure was raised widely during his investigations. It seems certain that he will recommend that this be improved, as well as urging the same kind of active management as Judge Facciola spoke of. What happens after that will depend on the new Master of the Rolls and on those responsible for drawing up the syllabus for the Judicial Studies Board.
It is not just lawyers and judges who need to be ready. Judge Facciola was critical of companies who pile up data without paying attention to how it was to be used.
Judge Facciola is an eloquent man, and this is a subject on which he has authority second to none. The podcast lasts only a few minutes and is well worth listening to.