Two weeks ago, I had the pleasure of chairing and speaking at IQPC’s 2nd Annual eDiscovery Canada Summit in Toronto, Ontario. The Summit had some excellent content, as well as very informative open discussions on a wide variety of topics during the breakout sessions and networking lunches. One of the discussions I was involved in was about the Seventh Circuit’s Electronic Discovery Pilot Program, a multi-year, multi-phase project that aims to improve the fairness and justice of pretrial litigation procedures, while reducing the overall cost and burden of dealing with ESI. With the second phase of the multi-year project about to wrap up (May 2011) and the committee’s report soon to be released, I thought it might be worthwhile to summarize the program and recap some of its progress.
The Seventh Circuit has taken a very unique and forward thinking approach with regard to Electronic Discovery over the last several years. As a result of growing concerns from both business and legal communities about the rising cost of civil pretrial discovery, it has developed a three phase Pilot Program that is designed to help guide litigants through the Electronic Discovery process. In May of 2009, a committee of trial judges, lawyers, consultants and academics met for the first time to discuss and create founding principles for this pilot program.
During these meetings the committee agreed that the main goal was to better balance discovery costs against the efforts required to reach a “just, speedy, and inexpensive” determination of cases as intended by the FRCP. Red R. Civ. P 1. To this end, the committee formulated three supporting goals to be used as the basis of Phase One of the Pilot Program, which was implemented from October 2009 to May 2010. These were: (1) develop guiding principles for the discovery of ESI that are fair to all parties and minimize the cost and burden of discovery in proportion to the litigation; (2) implement those principles in actual pending or filed court cases; and (3) survey the judges and lawyers involved in the cases to determine the effectiveness of the principles, solicit opinions regarding improvements that could be made to the principles, and assess whether the principles fulfilled the Committee’s goals.
For Goal (1), the committee created three areas of focus: (1) General Principles, (2) Early Case Assessment Principles, and (3) Education Principles. In my opinion, the real meat-and-potatoes of the three Principles exist in the Early Case Assessment portion. This section outlines the Meet and Confer requirements, the participation of an E-Discovery Liaison, Preservation Requests and Orders, Scope of Preservation, Identification of Electronically Stored Information, and Production Format. To me, the most forward thinking principle is the designation of E-Discovery Liaisons by both parties to deal with disputes concerning preservation and/or production of E-Discovery. The liaisons are tasked with attending meetings and court hearings to discuss and deal with any disputes that arise and no matter who acts as the liaison (attorney, consultant, or employee of the party) the liaison must: (1) be prepared to participate, (2) be knowledgeable about the party’s e-discovery effort, (3) be familiar with the party’s electronic systems and/or capabilities to answer questions or explain appropriately and (4) understand the technical nature of the E-Discovery in regards to storage, organization, format, search capabilities, and retrieval options. If the liaison does not have personal knowledge in one of these areas they are required to have reasonable access to resources that do.
Having a designated liaison by each party to deal with Electronic Discovery related issues solves two basic problems that plague many lawyers – the tendency to put off the E-Discovery issue all together and the lack of technical expertise to have these discussions in the first place. As most of you know who have been down this road before, the challenge we face in dealing with ESI as a whole is first knowing where all the data resides, then understanding what form it is in and how you can remove it from a network or computing devices without destroying the data – all while balancing the costs. This is a challenge that few people can understand, let alone manage. A dedicated E-Discovery liaison with expertise or access to a resource with expertise, allows both parties to discuss these matters on a more practical and technical level, which helps move the process along and hopefully results in agreements beneficial to both parties. We all can agree, or I hope we can, that any mistakes made at this important stage of the discovery process can cost one or both parties enormous amounts of time and money if decisions are made before a full understanding and analysis of ESI is completed.
In regard to Goal (3), “survey the judges and lawyers involved”, the Committee did just this and then released its findings in the Program Report on Phase One. From October 2009 through March 2010 the principles set forth were voluntarily implemented through a Standing Order in ninety-three civil cases by thirteen judges of the U.S. District Court for the Northern District of Illinois, including five district judges and eight magistrate judges. In March of 2010, the committee surveyed the 285 participating attorneys along with the judges. The survey results stated that 43% of attorneys thought the Seventh Circuits Standing Order increased the fairness of the discovery process and 38% of attorneys thought the Standing Order increased the parties’ ability to resolve e-discovery issues without Court involvement. All thirteen judges unanimously agreed that the involvement of the E-Discovery liaison contributed to a more efficient discovery process, and 90% of the judges thought the Standing Order increased counsel’s attention to ESI technology and familiarity with their client’s data and data systems. Also, 90% of the judges thought the Principles increased or greatly increased counsels’ level of attention to ESI issues and 92% of judges thought the Principles helped lawyers resolve discovery disputes before going to court.
Personally, I find it very exciting that all thirteen judges responded to the survey and unanimously found the use of an E-Discovery Liaison beneficial. Assigning this type of resource seems to have definitely paid off in their eyes.
Phase Two of the Pilot Program started in July 2010 and ends this May. The committee’s main goal for this phase is to increase the number of cases and judges participating in the Pilot Program by expanding its geographic reach. The committee also considered creating protocols regarding the production of ESI, including production format, de-duplication procedures, production of redacted documents, TIFF processing specification, “Bates” numbering procedures, and “clawback” procedures. In addition, the committee was considering whether or not to modify standard FRCP Form 52 to better address ESI discovery issues. We will have to wait and see how these were handled over the past year in the upcoming report.
I hope everyone takes some time to research the Pilot Program and follow its progress through Phase Two and Phase Three. It really is a forward thinking initiative and I think once you read and analyze all the Principles set out, it will help you understand the increasing difficulties we face when dealing with ESI. You can read all about the Pilot Program on the Seventh Circuit’s Bar Association Website at www.7thcircuitbar.org on the newly created E-Discovery home Page.