Response to William Matthewman, Towards a New Paradigm for E-Discovery in Civil Litigation: A Judicial Perspective
Abstract
The description, “activist judge,” often has a pejorative connotation in the culture wars, but what about judicial activism advocating for professionalism, cooperation, and honest good faith in e-discovery? Activism has been defined as “a doctrine or practice that emphasizes direct vigorous action especially in support of or opposition to one side of a controversial issue,” and after the 2015 amendment to Federal Rule of Civil Procedure (FRCP) 1 [also referred to as “Rule 1”], Chief Justice John Roberts said the eight words of the amendment were “words that judges and practitioners must take to heart.” Is it time for the phrase, “activist judge,” to have a new, more positive meaning—at least in the world of e-discovery law? In his Florida Law Review article, Towards a New Paradigm for E-Discovery in Civil Litigation, U.S. Magistrate Judge William Matthewman (S.D. Fla.) offers 10 insightful and helpful “Core Components” for effective e-discovery. Core Component 5 calls for “professionalism, cooperation, and honest good faith,” and Core Component 10 calls for “active participation of judges in the discovery process.” To make the Matthewman New Paradigm work, must judges go beyond being active and become judicial activists for cooperative e-discovery? Is it even possible in an adversarial legal system? When the Federal Rules of Civil Procedure became effective in 1938, counsel didn’t have to worry about zettabytes of data or how to get Instagram into evidence, but in 2020, technology is often the basis for discovery disputes. To the Chief Justice’s point in the opening quote, it’s doubtful there are legions of lawyers with a burning desire for discovery mayhem. Thus, should judges even be spending their valuable time on discovery disputes? In his Florida Law Review Forum response to Judge Matthewman’s article, the Honorable Andrew Jay Peck opined that Core Component 10’s call for more active judges is “unfortunately” the most important of the New Paradigm—unfortunate because judicial resources are scarce. This response will take Judge Peck’s analysis a step further, examining the effect of technology on society and the law, looking at the limits of FRCP 1 and Core Components 5 and 10, and—considering the jurisprudence on cooperation—examine how much we should expect judges to referee our discovery disputes when courts have had to resort to everything from games of rock-paper-scissors to coin tosses to adjudicate these matters.
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