This episode is a recording of my conversation with Judge Katharine H. Parker, Magistrate Judge for the U.S. District Court for the Southern District of New York. Judge Parker is an authority on, among other things, electronic discovery. Our conversation here focuses primarily on lawyers' duties under Fed. R. Civ. P. 34 (and, more broadly, the scope of discovery under Rule 26). The interview took place by teleconference on May 17, 2021. Because we recorded our conversation with Zoom, the quality of the audio is satisfactory, but not ideal.
This episode is a recording of my conversation with Judge Katharine H. Parker, Magistrate Judge for the U.S. District Court for the Southern District of New York. Judge Parker is an authority on, among other things, electronic discovery. Our conversation here focuses primarily on lawyers' duties under Fed. R. Civ. P. 34 (and, more broadly, the scope of discovery under Rule 26). The interview took place by teleconference on May 17, 2021. Because we recorded our conversation with Zoom, the quality of the audio is satisfactory, but not ideal.
Welcome to the civil procedure podcast. This episode is an interview with judge Catherine H. Parker. Judge Parker is a magistrate judge with the us district court for the Southern district of New York. If you are unfamiliar with you had curious about the duties and powers of United States, magistrate judges, you might check out section 6 30, 1 of title 28 of the U S code title 28, USC section 6 31. And the sections after it, there are about 500 plus magistrate judges in our system, and that compares to about 600 plus us district court judges. Judge Parker is a great interview. We talk about several topics, but primarily about document production under rule 34 and the scope of discovery under rule 26. My goal with this interview is to give you some additional perspective on document production in contemporary civil
Speaker 2:Litigation.[inaudible] welcome
Speaker 1:To judge Katherine Parker. Judge Parker is a magistrate judge for the us district court for the Southern district of New York, a position that she's held since 2016. I appreciate, uh, judge Parker very much. Uh, your willingness to help students learn civil procedure smack slasher. You are a 1992 graduate of Fordham law school. Do you remember your own civil procedure course and the highlights and lowlights of that
Speaker 3:Memory? I do
Speaker 4:In those days, we took a year of civil procedure to be quite honest. The class is a blur to me. Now, I remember a substantial amount of time being spent on jurisdictional issues and the Erie doctrine, but very little time spent on the practical aspects of the rules, things that I deal with as a magistrate judge and things that I dealt with in practice. So the course focused more on principles behind the rules rather than actual application in real cases.
Speaker 1:And so then you graduated and you clerked for the now late judge judge in Connecticut on the us district court. And then you practiced in a large law firm for 20 years, more than 20
Speaker 4:Years. So you
Speaker 1:Saw and learned and did lots of civil practice and procedure in a very practical sense,
Speaker 4:Right? The clerkship was a great way for me to learn what I refer to as the life of the case and what happens at the start and the trajectory of discovery to summary judgment or trial. And that was an invaluable experience to learn that and put me in a good position to be a productive associate when I got to proscower.
Speaker 1:And in your years of practice at the firm, you practiced in a few different areas.
Speaker 4:Yes, I was in a labor and employment department, but labor and employment law covers a broad array of laws, many federal. So from employee benefits, ARESA title seven actions and other kinds of civil rights type employment laws, as well as, uh, labor union matters involving the NLRA.
Speaker 1:I'm smiling because the word of Rissa always reminds me of an early assignment that I received. When I started practice a senior attorney gave me what he described as an Arista issue. And I didn't even know what that word was. I didn't know that it was an acronym. I just wrote something down phonetic and then later tried to figure it out. And now stands as a metaphor for me for all that one must be ready to receive by way of assignments. Once you start practice, because you don't learn everything you need to know in law school, there's a lot to learn once you get out,
Speaker 4:The learning curve is steep,
Speaker 1:Steep, indeed. So let's finish out your biography then, um, you then became a judge that happened several years ago. And I'm curious whether this was something that had been a goal of yours all along or whether this was a mid-career revelation, uh, to serve as a judge
Speaker 4:After clerking, I always had in the back of my mind that I would like to serve, and I always wanted that to be part of my professional career to be of service. And the neutral aspect of judging is something that appeals to me, the resolution of disputes, as opposed to the arguing of disputes. So I always knew that that was something that I wanted to do, whether I ever actually accomplished it was another thing altogether. Uh, but I feel very fortunate to have gotten this position.
Speaker 1:Yeah. And it seems appropriate for me here to observe that we are fortunate to have you on the bench. Would you say that being a judge is all that you hoped it would be or wanted it to be?
Speaker 4:Yes. Uh, it is a wonderful job and, uh, I see a huge variety of cases and practitioners. I love the district court because that's where all the action is in my mind. And, uh, it's a new, new thing every day, keep learning. And that's what I really enjoy about the law and judging
Speaker 1:And on the bench. What percentage of your attention is spent on civil matters and what percentage on criminal matters?
Speaker 4:That's a very good question because it varies considerably across districts in the Southern district of New York, the magistrate judges spend about 90% of their time on civil matters. We are principally focused on civil matters and a huge variety of those. And we spend a great deal of time helping parties, settle cases as well. I already
Speaker 1:Warned you that our conversation today would focus on discovery and rule 34 in particular. So our listeners are hearing this while they're learning about proportionality and the scope of discovery and document requests. And I'd like to begin with you just describing for us, what kind of a dispute about a document requests ultimately lands in your lap for resolution? What does a typical discovery dispute look like?
Speaker 4:Many of the disputes surround the scope or the breadth of the document requests, not withstanding the 2015 amendments to the rules. I find that practitioners still request any and all documents concerning a particular subject. It's a zipped. They are afraid that if they are too narrow, they'll miss something. And it, that kind of request is the type that generates an equally vague and obstructive response. And my view is that the person or the party propounding the request needs to think about the elements of their causes of action and the types of documents that they need create a list of those documents and then structure the rule 34 document requests based on that. Instead, many practitioners have a tried and true template that they modify in a very limited way for each case. And it is not tailored to that particular case or company, and it creates disputes
Speaker 1:And more experienced and sophisticated, uh, propounding parties let's assume they're plaintiffs, just so we can refer to them. So plaintiffs who are more sophisticated would tend to be more focused in their discovery requests. Is that a true state?
Speaker 4:That is not a true statement. I wish I could say that we're so, but the risk averse nature of attorneys is a tension against wanting to against the rules requirements to narrow the requests. So, as I said, parties are afraid that they're going to miss something. Instead of, I try to encourage parties to look at discovery as an iterative process and to focus on what you really need first. And then based on learning more facts from the documents that are produced, then have a second document request. That's the better way to proceed in my view. And I see some practitioners and, um, small firms do that very well. But overall, the rule 2015 amendments have not made as much of a change in practice as I would have hoped. So
Speaker 1:Imagine a discovery dispute where a plaintiff is seeking from a defendant corporation for years of records on some particular issue, rather than just three years of records on that issue, or a plaintiff is seeking electronic discovery from seven custodians instead of merely four custodians. How do you as a judge go about finding your bearings to determine what is reasonable in a circumstance like that?
Speaker 4:The initial case management conference is an important tool for me to understand the case and the claims. I have a standard form that I ask the parties to complete in advance of the conference, where they're required to state the claims and the defenses. And they're required to list the types of documents that they're seeking. They have a prompt to talk about preservation issues, a prompt to talk about custodians. And I asked them, how many depositions are they thinking about? And a little bit more about what they've put in their form to evaluate the vast majority of cases in federal court don't require more than 10 custodians and some less, there are more complex cases, especially in my district where more custodians are needed. A class action, for example, would be an example of a case that would require more than 10.
Speaker 1:Now, of course, document discovery, like all discovery is ultimately constrained by the scope of discovery as defined in rule 26. So any document request we need to figure out whether the sot document is relevant to the claim or defense of a party, whether the sot document is proportional to the needs of the case and whether the sot document is privileged. So let's focus on the first of those three relevance. I find that students have a hard time with this and I'm sympathetic to their struggles in finding a way to define what relevance really is. And so rather than just thinking of it as being something that's just testing the imagination of the lawyer, maybe you could give us some tricks or heuristics for a student who is trying to develop a more reliable intuition about what makes something relevant.
Speaker 4:There's a broad definition of relevance under rule 26, but it's narrower than it used to be. Parties used to be able to get in discovery, anything that could lead to the discovery of relevant and admissible evidence. And that standard has been narrowed thankfully to relevant. So the information that's being sought needs to be relevant to the claims and to the defenses. So I'm looking at the elements of the claims and the elements of the defenses. And I asked the parties to articulate why a particular category of documents is relevant. What element does that go to? What does that tend to show or disprove with regards to the claims in the suit? And if they can articulate that, then it's most likely going to be relevant under the rules. There's the separate question of whether it's also proportional and in that case, I'm looking at whether there are multiple sources of the same information and what source is the best source. This is true. Going back to your question about custodians, some custodians are more likely to have more of the relevant communications and some custodians may have been copied on some of the, uh, some of the communications and are, uh, whatever is in their repository is redundant of what another custodian has. So I'm going to look to eliminate redundancies. And I'm also going to look at the burden on the other side, in light of the types of claims and the relief being sought. Is this a$10 million case? Is it$150,000 case? If it's$150,000 case, you don't want discovery to cost$500,000. That doesn't make any sense. On the other hand, if the claim does involve civil rights or low money value cases, but in VR, it involves very important policy issues, civil rights issues. Then those costs may be justified. So it's a balancing act based on the factors set forth in rule 26. But those are some of the things that I'm evaluating to determine whether something's proportional or not. And in the
Speaker 1:Ordinary course. So you're referring to the proportionality factors, the six of them that are listed in rule 26 in the ordinary course, do you March through each of them and say, here are the six, you know, I'm going to genuflect to each of these and give them attention and figure out which way the wind is blowing on factor one. And then I turned it back to two, or is it more of a gestalt approach of just kind of getting the vibe of, does it comport with what I think is a reasonable discovery request?
Speaker 4:Uh, it's more the latter I'm applying on thinking about all of the factors as I'm evaluating a dispute, but each case is unique and no one factor is dispositive. And so it's a more holistic evaluation that I do factoring in all of those considerations because
Speaker 1:Of your substantial civil litigation experience, you are able to put yourself in the position of the parties who have a discovery dispute. I suspect. Is that your mindset? Do you think about that all
Speaker 4:The time? Yes. Because parties hire lawyers to represent them and the lawyers, usually they have more than one case and they have a capacity for only a certain amount of hours in a day. And I have to take into account what that discovery is going to, especially from a timeframe standpoint, how long it's going to take the attorneys to do what's necessary. So I, I would say that when taking into account the burden on the attorneys that impacts the timeframe more than whether the request is granted, the, whether the request is granted or not depends on the rule, but the timeframe may vary. Um, based on the case. In other words, I wouldn't impose a strict three month discovery deadline if the, and the discovering is necessitated a longer timeframe. So I am mindful of the impact on the lawyers and how that affects the overall schedule of the case. At the same time, I need to balance getting the case to a resolution. And that's important for the parties who want to get to a resolution. So that's part of the balancing act as well. And part of how I interpret rule one to interact with rule 26 is that you need to make sure the parties have enough discovery to prosecute and defend the claims, but not an overabundance. It's not a scorched earth exercise it's to get what's necessary to try the claims and get the case to as efficient a resolution as possible. In my labor and employment practice, I did a lot of arbitration and in arbitrations, sometimes there's a lot less discovery than in federal court. And we still got to just in reasonable results after a trial before the arbitrator. So I feel that that experience has informed me about what really is necessary to effectively try and defend a case. And what is proportional
Speaker 1:Judge? You earlier described the tendency of lawyers to seek evermore documents as risk aversion. And the risk of course, is not only losing a trial, which is an unlikely event, statistically, but the risk of losing it, summary judgment, which is a much more statistically likely possibility. Would there be less discovery if the standard for summary judgment was less demanding of plaintiffs?
Speaker 4:I don't, I don't think so. The reason is that a plaintiff who understands what he or she needs to prove his or her case can ask for those things. The touchstone for summary judgment is, is there a material factual dispute? So the initial disclosures are the starting point for understanding what the defendant is going to rely on. And that's what the plaintiffs should be focused on together with other categories of documents that the plaintiff might utilize to factually contest the story of the defendant
Speaker 1:As an empirical matter for most of the discovery disputes under rule 34, that reach you are those about the discoverability of electronic documents and about e-discovery generally
Speaker 4:Yes, most don't keep paper files in the olden days when I was a baby attorney, I remember getting sent into a warehouse and going through dusty boxes, marking those boxes, the papers in those boxes with post-its for copying and not knowing where to start. There was no vehicle to run search terms against documents, or it was, uh, uh, quite an inefficient way to proceed and find relevant information. So the fact that things are now mostly digital makes the search for relevant documents, easier in some respects, but most documents are electronic. You know, you have certain types of cases where documents are created on paper, but then data is entered into a database. So for example, in police brutality cases, you have police reports, things that the officers might fill out like a log book, but then other documents are typed into a computer back at the station for car accidents. You're still going to have photographs. So there may be some paper documents, but virtually everything is electronic these days,
Speaker 1:Right? So the technology has created more documents, but has given us some tools to make it easier to access them and sort them by image you judge at a conference about the cost of discovery, because the cost of any particular discovery request is part of the inquiry into determining whether the request is proportionate because the sixth factor under 26 B is whether the burden or expense of the proposed discovery outweighs its likely benefit. But when you're on the bench and you're hearing a one-sided presentation from somebody whose incentive it is to resist discovery and also their incentive, then to inflate the cost of a particular discovery request. I'm just hoping that you can share with us your experience of trying to interrogate that question about the cost of a particular discovery request and its larger role among these six factors in the proportionality inquiry prescribed by 26 B
Speaker 4:Yeah. Cost is just one factor and discovery is expensive. So one important data point is what is the recovery, which I mentioned earlier, the potential recovery versus cost of discovery. That's one data point, not a decisive data point. And the other factors also need to be balanced against cost as well as the other types of discovery that have been obtained. So if there's going to be a request for discovery into a database, that's difficult to, to access or requires extensive review time, or there's other difficulties with how that data can be produced, whether because of redactions that may be needed or programs that needs to be written, things of that sort. I have to look at the other factors in the rule and the other discovery that's been obtained is this the only source of that information and how important is that information to the overall case is this say ancillary issue that you're looking for is a central to the case. So that's another thing that I'm looking at the, the scale of relevance, if you will, there's some things that are directly relevant, critical key, and there's other documents that may be relevant on the broad definition of relevance, but marginally relevant will never, ever be used at trial or on summary judgment. So I'm also looking at are these the kinds of documents that the parties will be using at trial at summary judgment, there's a lot of documents, exchange and discovery that never see the light of day and take an inordinate amount of time and costs a lot for the parties. So I try to focus counsel on what are the types of documents that you really need at trial?
Speaker 1:Uh, plaintiff's memorandum in opposition to a defendant summary judgment motion is going to have some documents attached to it that they found in discovery. And that might be 20 documents, 50 documents, essentially. That's what we're trying to help that plaintiff get, right? The idea of discovery is to help them do those documents exist. And if they do here are the 15 or the 50 or the hundred and 50 that they need in order to allow you to decide whether this case should survive a summary judgment motion. Um, but they don't need a million documents. You've probably never seen a summary judgment motion opposition memo with a million documents attached
Speaker 4:To it. Correct. What's funny is that in the vast majority of cases, the lawyers on each side know what documents they're going to be using a trial or after initial disclosures, you know what those are, do plaintiffs sometimes find a hidden gem. Yes, they absolutely do. And that's what the discovery process is for.
Speaker 1:And so of course, the challenge for rule makers and in the absence of precise rules, the challenge for judges like yourself is to distinguish the situation where somebody is seeking a discovery request, where there is genuinely a unique document out there that would be retrieved through a discovery request, as opposed to a discovery request that will indeed yield nine more relevant documents. But those nine documents are merely copies of a document that the requesting party already have. Unfortunately,
Speaker 4:That's a lot of documents that are changed in discovery and it would be great if deduping software worked perfectly, but it doesn't. And technically under the rules near dupes are different documents and need to be produced. And sometimes those near dupes are important. They are important to the plaintiff's case. So the problem for plaintiffs of course, is they don't know what they don't know, and they don't know if those are going to be important. So it's difficult to say up front whether or not those should be deleted from the ultimate production. This is why I favor an iterative approach to discovery because it's often just a few emails or a few documents that are really important. And if you see those documents and ask, are there other versions or are there similar ones, then maybe those are the ones to get collect all the near dupes and or drafts, but that's not going to be important for the vast majority of documents. So in the future, I imagine there might be technology that helps practitioners sort this out right now. Technology is not at that stage to really winnow down. What's important with the many, many duplicates that parties have to sit through now.
Speaker 1:Well, I'm a plaintiff's lawyer. I think that that's the 31st document that we haven't seen yet. That's worth going through another million documents to find the 31st, because it might be the strongest of the 31. And so that's the dynamic that obviously that you're describing. Sure.
Speaker 4:And it is very difficult because in some cases there's not a lot of trust. And I do want to always remind people that, although there may not be trust between the parties, the lawyers have ethical responsibilities and the lawyers themselves are officers of the court. When they conduct discovery, they must do a reasonable search. They must interview their clients. They must supervise the search and have difficult conversations with their client. If there's a bad document, there's a bad document. Learn about it sooner, rather than later, it's going to have to be produced. And maybe that means a case needs to be settled, but sometimes lawyers forget that the adversary also has professional obligations. And at some level, the court has to trust that lawyers are fulfilling their professional responsibilities with respect to discovery, all lawyers on both sides have to conduct that reasonable search and turn over documents, whether good or bad for their case.
Speaker 1:And are you sanguine about lawyers satisfying these ethical responsibilities in answering that question? I guess we could talk about two different flavors of discovery abused. There's the over discovery phenomenon where somebody asks for more than they in fact need or want as a way of imposing a cost and perhaps extorting some sort of a settlement offer from the vulnerable party. And the other species of abuse would be under discovery where somebody refuses to produce something that they're in fact obligated to produce of the two weaponization and recalcitrance. Maybe one is more prevalent than the other from your perspective.
Speaker 4:I don't think one is more prevalent than another. Uh, I see, see it on both sides. Unfortunately I wish I didn't see it at all, but most lawyers are trying to do their best job. So I would say this is a small fraction of lawyers on both sides and that the vast majority of lawyers I see are really trying their best.
Speaker 1:I find discovery to be a very good opportunity to talk about lawyer ethics because a lawyer, especially a young lawyer, is most likely to compromise their own ethics in a circumstance where they see it as merely leveling the playing field. If you have a perception that the other side is cheating, then it's all too easy to start cheating as well. In light of that, could you give some advice about the importance of ethics, whether in the discovery context in particular, or just in lawyering more generally,
Speaker 4:It's your entire career, your responsibility, your responsiveness, your professionalism is your reputation. That's how you build a practice. That's how you build trust with your adversaries as well. And that is important. All you have is your name and your professionalism. So it's of utmost importance, even when you're facing an adversary who is not acting as he or she should under the rules, I would say always take the high road always and never compromise your, uh, your ethics because not only, only are you risking your license, but your entire reputation. And, uh, you can always bring things concerns to the attention of the court. There are bar associations in every state that have ethics hotlines that attorneys and especially solo practitioners should be using, but it is critical for the overall profession as well. And for public trust in the legal system and the court system that lawyers act ethically at all times, we are at a time in our society where there are segments of the population that mistrust the law or legal institutions. And I think lawyers can play an important part in promoting confidence in our legal system. I, of course, think that laws, what makes us a and preserves are our democracy. Um, I'm a very big believer in that. And every lawyer, uh, has a responsibility to ensure that they're upholding the code.
Speaker 1:I think that's a, a good way for us to conclude. I do have one more question though. Can you recommend a book or a podcast or a movie whether law related or not law related that students might enjoy?
Speaker 4:So if folks haven't read just mercy, uh, that is a wonderful book about our legal system. And I would recommend that very highly. And there's one other book called devil in the Grove, which is an amazing book about Thurgood Marshall in his early days. And it's a very well researched and written very compelling book. So those are two that I would highly highly recommend to students.
Speaker 1:Judge Parker, thank you for your time and thank you for your distinguished public service.
Speaker 4:You are very welcome. Thank you for having me. It's been an honor.
Speaker 2:[inaudible].