On October 1, 2009, the Seventh Circuit Court of Appeals launched an Electronic Discovery Pilot Program, a test run of a set of principles designed to minimize the growing cost and burden associated with the discovery of electronically stored information (“ESI”). See Seventh Circuit Electronic Discovery Pilot Program, Statement of Purpose and Preparation of Principles, available at http://www.ilcd.uscourts.gov/Statement%20-%20Phase%20One.pdf. The principles, which take the form of supplemental procedural guidelines addressing e-discovery issues, were drafted by the Seventh Circuit’s Electronic Discovery Committee (the “Committee”), a task force composed of trial judges, attorneys, academics, and litigation consultants with expertise in e-discovery. In Phase One of the Pilot Program, which runs from October 1, 2009 to May 1, 2010, participating district court, magistrate, and bankruptcy judges will adopt the Committee’s principles in Standing Orders entered in select cases. After other phases of testing and review are completed, the Committee intends to formally present its findings and publish a revised set of final principles in May 2011.
The Committee intends the principles to “incentivize early and informal information exchange on commonly encountered issues” relating to ESI discovery, and, to that end, generally encourage counsel and parties to discuss and resolve issues early and without court involvement. Beyond the general goal of improving communication and fair play in discovery, the principles impose additional procedural obligations on parties. If they are deemed successful, the principles could be adopted in other jurisdictions. This article provides a brief overview of the Pilot Program’s more noteworthy features.
Duty to Meet and Confer on E-Discovery Issues
Principle 2.01 requires counsel to meet and confer prior to the initial status conference, on various e-discovery issues, including the identification and scope of relevant and discoverable ESI, formats for preserving and producing UpdateESI, and procedures for handling inadvertent production of privileged information. See Principle 2.01 (a)(1)-(5). While disputes between the parties relating to these issues may still be presented to the court at the initial status conference, the principle attempts to incentivize early resolution by (i) encouraging counsel to review how their clients’ data is stored and retrieved before discovery requests are made and (ii) emphasizing that a failure to participate in the meet and confer process may subject parties to sanctions or other penalties.
If a dispute does arise concerning the preservation or production of ESI, Principle 2.02 directs the parties to appoint “e-discovery liaisons,” defined as individuals – whether attorneys, third party consultants, or party employees – who are knowledgeable about the parties’ e-discovery procedures, ESI storage systems, and information retrieval technology. The principle contemplates that e-discovery liaisons will be available for any meetings, discussions, or court hearings on e-discovery issues.
ESI Preservation Guidelines
The principles provide guidelines designed to eliminate “vague and overbroad” preservation requests and responses in favor of those that “facilitate cooperation between requesting and receiving counsel and parties by transmitting specific and useful information.” See Principle 2.03 (a), (b). Principle 2.03 suggests well-drafted preservation requests will include the names of the parties and potential witnesses and other people reasonably anticipated to have relevant evidence; the factual background of the legal claims; and the time period relevant to the request. Principle 2.04 encourages parties responding to preservation requests to better explain their preservation efforts by detailing what information they are willing to preserve and what they are doing to respond to the preservation request; any disagreements they have with the preservation request; and any other preservation issues not raised in the request.
Noting that discovery of a party’s preservation and collection efforts may lead to unnecessary expense and delay or raise privilege issues, the principles require parties seeking such information first to discuss the need for the information and its relevance to the litigation. See Principle 2.04(c). Parties must also discuss at the meet and confer stage any requests seeking types of ESI that the Committee finds “generally are not discoverable,” including: deleted, fragmented, or unallocated data on hard drives; RAM or other ephemeral data; on-line access data, such as temporary internet files and browsing history; backup data “that is substantially duplicative of data” more readily accessible elsewhere; and any other ESI “whose preservation requires extraordinary affirmative measures that are not utilized in the ordinary course of business.” See Principle 2.04(d).
ESI Production Guidelines
The principles mandate discussion of both how ESI is collected and the format in which it is produced. Principle 2.05, for instance, requires parties to discuss ESI collection methodologies at the Federal Rule of Civil Procedure 26(f) conferences, and encourages particular discussion of plans to “de-dupe,” or eliminate duplicative ESI; filtering data based on various parameters; and the use of keyword searches and more advanced collection methodologies.
Under Principle 2.06, parties must make a good faith effort at the Rule 26(f) conference to agree on the format for ESI production. To that end, the principle clarifies that ESI or paper documents “that are not text-searchable need not be made text-searchable,” and encourages counsel and parties to discuss sharing the cost of making ESI or paper documents text-searchable through optical character recognition (“OCR”) or other means.
The Seventh Circuit’s Electronic Discovery Committee notes that its Pilot Program stands out from other recent calls for e-discovery reform because its recommendations will be tested and evaluated. While the impact of the principles’ adoption on litigation costs may not be formally assessed for several years, any early successes could inspire the implementation of similar reforms in other circuits and state courts.