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November 2009

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This article is in the news archives --- for current news go to the Third Branch News.


7th Circuit Pilot Program Provides A New Approach to E-Discovery

The 7th Circuit launched a pilot program last month to create a new approach to electronic discovery, which is often a prolonged and costly process. The circuit joins the District of Maryland and the District of Kansas in providing additional direction in cases involving e-discovery.

“Electronically stored information (ESI) touches all aspects of our lives,” said Chief Judge James F. Holderman, Jr (N.D. Ill.), “which means that, when it comes to discovery, it’s really electronic discovery. Yet we rely on the same paper discovery procedures we’ve used for the last century to work for e-discovery. They’re just outdated. We need a new approach.”

The program will test a number of principles developed by an E-Discovery Committee formed by Holderman last May. Chaired by Magistrate Judge Nan Nolan (N.D. Ill.), the committee drew its members from a group of what Holderman terms the “best and brightest” trial judges and lawyers, including in-house counsel, private practitioners, government attorneys, academics, and litigation expert consultants who practice within the districts of the 7th Circuit. Phase I of the pilot will run through May 1, 2010.

As described in the pilot program’s statement of purpose, the principles are intended, “to incentivize early and informal information exchange on commonly encountered issues relating to evidence preservation and discovery, paper and electronic, as required by Rule 26(f)(2).”

“For the last several years, whenever I’ve spoken to bar groups or to business executives,” said Holderman, “they’ve told me something has to be done about discovery. It is expensive, burdensome, time-consuming, and it is causing executives to make decisions about sometimes meritless litigation simply because of the costs involved in the litigation.”

Preliminary findings in a recent study by the Federal Judicial Center indicate that, although most attorneys believe the e-discovery rules work, there may be concerns about e-discovery in large cases [See story on page 5.] According to a recent survey of the Fellows of the American College of Trial Lawyers, a joint project of the American College of Trial Lawyers Task Force on Discovery and the Institute for the Advancement of the American Legal System, less than 44 percent of the fellows believe current discovery mechanisms work well, and over 87 percent indicate that e-discovery increases the cost of litigation. In 2009, the Institute also reported that, according to data collected by an industry leader in e-discovery, it costs between $5,000 and $7,000 to process, review, cull, and produce one gigabyte of data. A midsize case with 500 GB of data could cost $2.5 to $3.5 million on discovery alone.

“The Institute’s report was an impetus for the pilot,” said Holderman. “The day after the 7th Circuit’s Judicial Conference, we had our first meeting.” The meetings continued from May 2009 throughout the summer, with the full committee and subsequent subcommittees considering what could be done to reduce the cost of electronic discovery. As word spread, membership swelled to nearly 40 experts, a development that gradually moved the group to the court’s largest meeting room. By September, the committee had come up with the principles of e-discovery.

“The purpose of the principles,” said Nolan, “is in Principle 1.01: to assist courts in the administration of Federal Rules of Civil Procedure to secure the just, speedy, and inexpensive determination of every civil case, and to promote, whenever possible, the early resolution of disputes regarding the discovery of electronically stored information without court intervention.”

The principles address early case assessment, preservation, identification of ESI, production format, and the need for education on the fundamentals of discovery of ESI. The complete principles, and a draft standing order that implements the principles and requires counsel to cooperate, are available on the 7th Circuit’s website.

“The order will be entered in every district or bankruptcy court case where the judge in the case believes it is appropriate. Everyone has a full understanding of what is being requested and why, in order to minimize the burden,” Holderman explained. “All of our magistrate judges, who are the primary discovery judges in our courts, will implement this standing order. On a voluntary basis, district and bankruptcy judges also will be entering the order. Then we’ll survey the lawyers and judges involved, and hopefully get information from the clients to assess whether these procedures have helped reduce the cost and burden of electronic discovery.”

To help educate the bar and bench on the sometimes confusing technology involved in e-discovery, the 7th Circuit is preparing a webinar that will be available on the website of the 7th Circuit Bar Association.

Holderman and Nolan hope to report the pilot survey results at the 7th Circuit Judicial Conference in May 2010 and at a conference on litigation to be held at Duke University that month.

Then Phase II begins. “With the the feedback we get from Phase I,” said Nolan, “we’ll be better able to focus on those areas that maximize the cost-effectiveness of e-discovery, and possibly implement new procedures or new standing orders if necessary, to improve the process.”

In the meantime, Holderman hopes other courts will want to know more about the 7th Circuit’s project and possibly join together to evaluate and establish their own effective e-discovery procedures.

“We have to change the culture of discovery in the United States,” he said. “Change is hard to bring about, but we have to do something to reduce the burden and the cost.”