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October 13, 2009

Seventh Circuit's Pilot E-Discovery Program

The Seventh Circuit recently announced it was commencing the first phase of an e-discovery pilot program that will run from Oct. 1, 2009 to May 1, 2010. See http://tiny.cc/7thCircuitPilot


The pilot involves the promulgation of a set of principles intended to incentivize early and informal information exchanges on issues common to ESI. The principles are included in a proposed standing order relating to the discovery of ESI which several district court judges, magistrates and bankruptcy judges in the Seventh Circuit have agreed to use in selected cases during the initial phase.

The principles highlight the 2006 amendments to the Federal Rules of Civil Procedure, but they go beyond the Federal Rules of Civil Procedure in a several helpful particulars, e.g.

  • Zealous Representation. Principle 1.02 specifically addresses the zealous representation excuse for obstructionist behavior – the principles state that “An attorney’s zealous representation of a client is NOT compromised by conducting discovery in a cooperative manner.” (Emphasis added.)
  • Proportionality. Principle 1.03 calls attention to Fed. R. Civ. P. 26(b)(2)(C), which permits objections to discovery requests where the burden or expense outweighs its likely benefit considering such things as the resources of the parties and the amount in controversy.
  • Meet and Confers. Principle 2.01 specifically references Fed. R. Evid. 502. If the pilot project can find a way to minimize the amount of attorney time spent in pre-production privilege reviews it would have made a huge contribution to achieving the overall goal of securing the “just, speedy, and inexpensive determination of every action."
  • E-Discovery Liaison. Principle 2.02 contemplates the appointment of an e-discovery liaison for the purpose of meeting, conferring or attending court hearings on e-discovery issues. The liaison may be an attorney but can also be a third party consultant or an employee of the party. The liaison needs to know or have access to the people who are familiar with a party’s electronic systems and capabilities, as well as the technical aspects of e-discovery
  • Preservation. Principle 2.03 explicitly disfavors broad requests for preservation and encourages the exchange of specific information to help determine appropriately specific preservation agreements.
  • Scope of Preservation. Principle 2.04 covers the scope of preservation. 2.04(b) requires a party seeking information regarding the other party’s preservation and collection efforts to confer with the other party before initiating such discovery. 2.04(d) enumerates types of information that would NOT ordinarily be preserved, e.g. deleted, slack, fragmented or unallocated data.
  • Identification of ESI. Principle 2.05 encourages parties to discuss such things as treatment for duplicative ESI, filtering based on file type, date ranges, etc, and use of keyword searching, topic or concept clustering or other advanced culling technologies.
  • Production Format. Principle 2.06 states that ESI and other tangible or hard copy documents that are not text-searchable need not be made text searchable, meaning, evidently, that scanned paper documents would not need to be OCR’d.
  • Education. Principle 3.01 states a judicial expectation that counsel will be familiar with the Federal Rules of Civil Procedure governing electronic discovery. Considering that the ESI rules have been in effect for three years as of December 1, 2009, and they were much publicized prior to their adoption, that hardly seems unreasonable or overreaching.
  • I couldn’t help but wonder what clients would think about their lawyers being advised to become familiar with the rules of civil procedure.  Probably like the heart surgery patient who reads a new notice in the patient prep area suggesting that surgeons become familiar with the heart surgery equipment the hospital started using three years ago.

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