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Remembering Judge Waxse, a Champion of Cooperation in e-Discovery

David Horrigan

Editor's Note: This tribute was first published by Legaltech News.

The Honorable David J. Waxse, retired United States Magistrate Judge for the District of Kansas, passed away earlier this month. To say Dave Waxse was a legal legend in the field of e-discovery law doesn’t do his contributions justice.

With his intellectual prowess, quick wit, impish grin, and concern for those who might have the legal deck stacked against them, the Gentleman from Kansas made the law a better place for those who had the good fortune to learn about the law from him.

A Data Law Pioneer

Legal opinions on data issues are now somewhat common, but they weren’t when Judge Waxse ascended to the federal bench in 1999. Nevertheless, the judge became a preeminent jurist in the fields of e-discovery and related data law fields.

If your electronic data were about to be invaded by an overzealous government data sweep, Judge David Waxse was your friend.

In cases such as In re Search of Three Cellphones and In re Search Warrants for Information Associated with Target Email Accounts/Skype Accounts, Judge Waxse blocked attempts to seize data he where he found those attempted data grabs “too broad and too general.”

Judge Waxse’s contributions to the field of e-discovery law are substantial—perhaps most importantly as a champion for the concept of cooperation in e-discovery.

Gentle Counsel in a Less than Gentle Process

Many lawyers and legal teams are caught up in the concept of zealous advocacy, arguing that the rules mandate that they must be zealous advocates for their clients. Ergo, the argument goes, the rules require them to reach new levels of zealous obnoxiousness and legal trench warfare.

The Honorable Dave Waxse was having none of it.

In his 2012 law review article in the University of Richmond School of Law’s Journal of Law & Technology (JOLT), Cooperation—What is It, and Why Do It?, Judge Waxse noted that blind allegiance to the zealous advocacy standard was a misplaced anachronism from a bygone era.

“Lawyers and judges should consider that the ABA Model Rules of Professional Conduct removed the former ethical obligation for zealous advocacy from the ABA Model Code of Professional Responsibility when the ABA Model Rules of Professional Conduct replaced the Code in 1983,” Judge Waxse wrote.

Although the judge conceded that “zealous advocacy” remained in the Preamble and the comment to Rule 1.3, Judge Waxse wasn’t buying the argument that zealous advocacy meant that parties couldn’t cooperate in e-discovery, noting that even the old version of the rules called for cooperation.

“In the final analysis, proper functioning of the adversarial system depends upon cooperation between lawyers and tribunals,” Judge Waxse wrote, citing a portion of the old Canon 7.

Court-Coerced Cooperation

Just because Judge Waxse was a nice guy didn’t mean he suffered fools gladly. In fact, he wasn’t shy about noting when unhelpful hijinks hijacked the judicial system.

In the Fall of 2014, Judge Waxse joined US District Judge Nora Barry Fischer (W.D. Pa.), US Magistrate Judge Andrew Peck (S.D.N.Y.), US District Judge Xavier Rodriguez, and this writer as moderator, for the first Relativity Fest Judicial Panel.

As he did so often, Judge Waxse told a humorous tale to illustrate an important point at that first Judicial Panel.

“What I’ve developed is a method for increasing cooperation,” Judge Waxse said. “I tell them: ‘I want you to go back and rediscuss this and see if you can’t really cooperate and reach some agreement—and to help you—I want you to videotape the conference, and either send me the agreement or the videotape.’”

“I have yet to watch a videotape,” the judge noted to the delight of the capacity crowd in Chicago.

The Honorable Dave Waxse then pondered why his method worked.

“I don’t know why this works,” Judge Waxse said, but he offered a theory from a member of the bar.

“I was on a panel with a lawyer who had an undergraduate degree in physics, and she said, ‘Judge, it’s pretty simple why that works: lawyers are like particles in physics. They change when observed,’” the judge noted.

However, the Waxse Video Cooperation Method didn’t always work.

One of the great things about a continuing legal education program with Judge David Waxse was his interaction on a CLE program with his fellow jurists.

Others tried to emulate the Waxse Method. For instance, Judge Peck thought he would try to spread the gospel of cooperation by suggesting Judge Waxse’s idea to other members of the bench.

There were unintended consequences.

“This one judge from New Jersey tried it—but she tried it only once,” Judge Peck said. “She stopped after she ended up with hours of videotape to watch.”

“Maybe it’s the difference between New Jersey lawyers and Kansas lawyers,” Judge Peck opined, “or maybe it was because Dave Waxse was not the presiding judge. Perhaps both. We did many e-discovery programs together, and I remember trying to get through the Columbus Day Parade traffic with him in Chicago after that first Judicial Panel. I certainly miss him.”

Judge Peck isn’t the only one who will miss Judge Waxse.

Judicial Remembrances

“I enjoyed being with him. He was always down to Earth, and he was always practical,” Judge Fischer, now Senior US District Judge for the Western District of Pennsylvania, said. “I am sure the bench and bar will miss him—not only in Kansas, but beyond the land of the Jayhawks as well.”

As noted above, Joining Judges Waxse, Fisher, and Peck on that first Judicial Panel was US District Judge Xavier Rodriguez.

“Judge Waxse was a big man—his physical presence and his sternness for preparedness and cooperation, however, really hid the other side to his personality,” Judge Rodriguez said. “He had a mischievous grin, he was warm and friendly, and he really did like people and want to solve problems. He was a great judge, contributed greatly to how we advance the just, speedy, and inexpensive determination of civil cases, and he will be missed.”

Oswego and Beyond

Many know that Judge Waxse was a graduate of Columbia Law School, but before he ventured off to New York and the Ivy League, he graduated from the University of Kansas where he played freshman basketball as well as serving as a defensive back and a linebacker for the Jayhawks football team. He was born is Oswego, Kansas. He is survived by his wife, Judy Pfannenstiel, his children, and many family.

Judge Waxse made an impressive contribution to American jurisprudence. His influence on the law in District of Kansas has been substantial, but his contributions to the law and legal education have extended far beyond his home state.

He served as chair of the National Conference of Federal Trial Judges of the American Bar Association, and before becoming a judge, he served on the national board of the American Civil Liberties Union. He spoke on e-discovery law around the world.

The Honorable David Waxse may have moved on to greener pastures, but his contributions to the law of e-discovery and the people who practice it live on—and we’ll enjoy the video of his video tale this September in Chicago.

For those in the world of e-discovery law, Judge Waxse leaves us with many important lessons, not the least of which what he gave us in Gipson v. Southwestern Bell Telephone Co. It may seem simple, but many lawyers often don’t seem to get it. Judge Waxse would want us to leave this reminder for you:

As of the date of the discovery conference, more than 115 motions and 462 docket entries had been filed in this case—even though the case has been on file for less than a year. Many of the motions filed have addressed matters that the Court would have expected the parties to be able resolve without judicial involvement. This Court’s goal, in accordance with Rule 1 of the Federal Rules of Civil Procedure, is to administer the Federal Rules of Civil Procedure in a ‘just, speedy, and inexpensive’ manner. To assist the Court in accomplishing this goal, the parties are encouraged to resolve discovery and other pretrial issues without the Court’s involvement.

 . . . or else end up on video.

David Horrigan is Relativity’s discovery counsel and legal education director. An attorney, award-winning journalist, law school guest lecturer, and former e-discovery industry analyst, David has served as counsel at the Entertainment Software Association, reporter and assistant editor at The National Law Journal, and analyst and counsel at 451 Research. The author and co-author of law review articles as well as the annual Data Discovery Legal Year in Review, David is a frequent contributor to Legaltech News, and he was First Runner-Up for Best Legal Analysis in the LexBlog Excellence Awards. His articles have appeared also in The American Lawyer, Corporate Counsel, The New York Law Journal, Texas Lawyer, The Washington Examiner, and others, and he has been cited by media, including American Public Media’s Marketplace, TechRepublic, and The Wall Street Journal. David serves on the Global Advisory Board of ACEDS, the Planning Committee of the University of Florida E-Discovery Conference, and the Resource Board of the National Association of Women Judges. David is licensed to practice law in the District of Columbia, and he is an IAPP Certified Information Privacy Professional/US.