7th Circuit focuses on more test cases, surveys in next phase of e-discovery pilot program
The 7th US Circuit E-Discovery Pilot Program is a unique project in the federal appellate courts that aims to guide practitioners on controlling the escalating costs and burdens of electronic discovery. The multi-phase program— led by Chief District Judge James Holderman and Magistrate Judge Nan Nolan—is steered by a committee of trial judges, in-house and government attorneys, private practitioners, academics and litigation consultants, primarily from the Chicago-based 7th Circuit.
Judge Holderman told the Georgetown Law Advanced E-Discovery Institute last week that education is key. The program’s education subcommittee presented two national webinars, free of charge, in spring 2010.
"The first was a discussion of the pilot program’s principles. The second was how to communicate with your client, with an eye toward the principles," said Mary Rowland, co-chair of the education subcommittee, and partner at the Chicago office of Hughes, Socol, Piers Resnick Dym Ltd. She said 1,000 people signed up for the sessions, and afterward participants told organizers they wanted even more training.
"It became apparent that some of the confusion and burden comes from people not knowing what e-discovery to ask for [in litigation]. We realized early on that the 7th Circuit committee could offer free training on basic terminology," she said.
The education subcommittee is planning a live-cast training on preservation issues and privilege logs in January 2011, and an e-discovery "basics" webinar in February.
The pilot program’s goal was to develop and improve pretrial discovery procedures. In summer 2009, the program committee drafted 11 e-discovery principles that call for enhanced cooperation among litigators; proportionality of e-discovery requests, measured against their cost; and the use of e-discovery liaisons. These liaisons may be attorneys, consultants or individuals knowledgeable about e-discovery who are appointed by opposing parties to assist during the meet and confer process, attend hearings, and help resolve disputes.
Thirteen judges from the US District Court in Chicago implemented the program’s principles in the 93 test cases, which were civil cases before five district judges and eight magistrate judges.
Surveys about the effectiveness of the principles were sent to the 13 judges and to 285 attorneys involved in the Phase One cases. The pilot program committee received responses from all the judges and 133 attorneys, or 46 percent.
The responding judges all agreed that the e-discovery liaisons contributed to a more efficient discovery process, and 92 percent of them thought that the principles helped attorneys resolve discovery disputes before requesting court involvement.
Of the responding attorneys, however, 61 percent reported that they felt the principles had no effect on their ability to resolve disputes without involving the court. Despite some concerns that encouraging cooperation between opposing parties would impair the attorneys’ duty to be zealous advocates for their clients, 74 percent said the principles had no effect on their ability to be advocates, and 22 percent said the principles enhanced their ability to represent their clients.
"Phase One is about getting the qualitative feedback of a small group of people," said Alex Buck, who co-chairs the pilot program’s Communication and Outreach subcommittee. Buck is an e-discovery and technology attorney at the Chicago office of Bartlit Beck Herman Palenchar & Scott, LLP.
"In Phase Two, we want quantitative results," Buck said. "There are more cases, judges, lawyers, and participants going to be involved. Now we’re conducting a larger survey to get a feel for if the e-discovery program is working, and how much time and money spent on various aspects."
Phase Two will reach more attorneys and courts in the 7th Circuit, including districts in Indiana and Wisconsin. It will run until May 2011.
A Phase Two survey was sent to all the roughly 30,000 attorneys registered in the e-filing system of the 7th Circuit.
The committee also created a Standing Order Relating to the Discovery of Electronically Stored Information, entered in participating Phase One cases from October 2009 to March 2010.
The order required the program’s principles to be followed by parties and counsel in the 93 test cases. That order is already being entered in Phase Two cases in Indiana and Wisconsin.
