Electronic Discovery Law

Beginning October 1st, Phase One of the Seventh Circuit’s new Electronic Discovery Pilot Program (“Pilot Program”) will begin.  The Pilot Program will be implemented through Standing Orders in selected cases, and evaluated through questionnaires to participating judges and lawyers.

The Pilot Program was developed as a result of recent and ongoing discussions throughout the industry regarding the need for cooperation and reform, especially in light “the rising burden and cost of discovery in litigation in the United States brought on primarily by the use of electronically stored information…”

The goal of the Principles is to incentivize early and informal information exchange on commonly encountered issues relating to evidence preservation and discovery, paper and electronic, as required by Rule26(f)(2).  Too often these exchanges begin with unhelpful demands for the preservation of all data, which often are followed by exhaustive lists of types of storage devices.  Such generic demands lead to generic objections that similarly fail to identify specific issues concerning evidence preservation and discovery that could productively be discussed and resolved early in the case by agreement or order of the court.  As a result, the parties often fail to focus on identifying specific sources of evidence that are likely to be sought in discovery but that may be problematic or unduly burdensome or costly to preserve or produce.

Incorporating many of the requirements of the Federal Rules of Civil Procedure, the Seventh Circuit Electronic Discovery Pilot Program’s Principles Relating to the Discovery of Electronically Stored Information (“Principles”) focus in large part upon cooperation between the parties to resolve common issues related to e-discovery.  Accordingly, in selected cases where the Principles are operative, counsel is required “to meet and discuss the application of the discovery process set forth in the Federal Rules of Civil Procedure and these Principles specific to their case.”  The Principles also address common issues including the scope of preservation, the identification of electronically stored information, and the format of production.

Other highlights from the Principles include:

- the requirement that counsel designate an e-discovery liaison to work toward resolution in the event of a dispute;
- the delineation of specific considerations surrounding the use of a preservation letter, and the appropriate considerations in responding;
- the requirement that counsel confer with opposing counsel before seeking information regarding preservation and collection efforts to determine the need for such information and the suitability of alternative means to obtain it;
- the designation of certain categories of information as “generally not discoverable” such that counsel must confer prior to making a request for such information;
- the encouragement of counsel and the parties to “make a good faith effort to agree on the format(s) for production;” and
- the encouragement of the parties to “discuss cost sharing for optical character recognition (OCR) or other upgrades of paper documents or non-text-searchable electronic images that may be contemplated by each party.”

Phase One of the Pilot Program is schedule to end on May 1, 2010.  The results of the Pilot Program will be presented at the 7th Circuit Annual Meeting.  Phase Two of the Pilot Program is expected to run from June 2010 to May 2011, when the E-Discovery Committee will formally present its findings and issue its final Principles.

For a full copy of the Statement of Purpose and Preparation of Principles, click here.