In last week’s ABA Techshow in Chicago, two Texas judges provided their “do’s and don’ts for attorneys”, including eDiscovery tips.

According to Casey Newton of Project Counsel Media (Judges advice to lawyers: “Do some eDiscovery before you begin fighting”, available here), Judges Xavier Rodriguez and Roy Ferguson spoke on a panel last week about their “do’s and don’ts for attorneys” when they are in the courtroom.

As the title of his Casey’s article indicates, Judges Rodriguez and Ferguson told attorneys they should talk with opposing counsel if they have concerns about relevant data not being produced in litigation before involving the court in the dispute.

Special Judge Ferguson said that attorneys’ eDiscovery requests for more data from a computer or cellphone to be produced in litigation will not be granted without evidence that there is more relevant data. He added that one way attorneys can support their discovery requests is by deposing a witness, and if the witness mentions unproduced emails or texts, the attorney has evidence relevant data hasn’t been produced:

“If you want to get information that establishes that there’s missing documentation, a one-hour deposition will probably do it”.

Texas U.S. District Judge Rodriguez said that even though some state courts don’t have meet-and-confer requirements, competent attorneys will talk with opposing counsel first about data production before involving a judge:

“One of the major problems I see is you guys don’t talk, and so everybody just like wants to rush to the fight without the talk in advance”.

Judges Ferguson and Rodriguez spoke together on a panel about their do’s and don’ts in the courtroom, covering topics including discovery, sanctions, trial presentation and artificial intelligence.

On the topic of sanctions, Judge Ferguson said good lawyers ask for appropriate sanctions, instead of the most aggressive sanctions possible like throwing out a case. He gave an example of a dog attack case where video evidence was deleted, and his remedy was to have four witnesses excluded from testifying at trial:

“What you need to do is ask for the least aggressive sanction that remedies the problem”.

Regarding AI, Judge Rodriguez said attorneys should give judges advance notice of any novel uses of the technology like an AI-generated victim impact statement for a deceased person (which actually happened here):

“No one likes last-minute, all of a sudden, I’ve got to figure out on the fly whether I should allow this in or not”.

Casey’s article also discusses the judges’ advice on the importance of good storytelling when at trial.

While I haven’t been to ABA Techshow in years (as there is very little eDiscovery emphasis), this sounds like a session I wish I had caught. Thanks for the recap, Casey!

So, what do you think? What “do’s and don’ts for attorneys” can you think of? Please share any comments you might have or if you’d like to know more about a particular topic.

Image created using DALL-E 3, using the term “two robot lawyers dressed in suits speaking on a panel to a audience in an auditorium”.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.