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7th Circuit Launches E-Discovery Pilot Program

Hedda Litwin, Cyberspace Law Chief Counsel

Hedda Litwin, NAAG Cybercrime Counsel

Phase One of the 7th Circuit’s Electronic Discovery Pilot Program launched on Oct. 1. It was developed as a result of continuing discussions regarding the need for cooperation and reform, particularly in view of the increasing costs and burden of electronic discovery. The pilot will be implemented by Standing Orders in selected cases, and will be evaluated using questionnaires completed by participating judges and attorneys. The proposed standing order includes the following responsibilities:

  1. Attorneys who do not cooperate will be sanctioned;
  2. Requests for electronically stored information (ESI) must be proportional to the case involved;
  3. Attorneys have a duty to meet and confer, including addressing the issues of production format and identification of ESI;
  4. An e-discovery liaison to handle disputes must be identified;
  5. Preservation requests must be specific and appropriate; and
  6. Attorneys appearing before the court must be familiar with ESI.

A committee comprised of trial judges and lawyers, based primarily in the 7th Circuit, worked in subcommittees over several months to develop the pilot’s Principles Relating to the Discovery of Electronically Stored Information. These will be implemented and evaluated during Phase One, which runs from Oct. 1, 2009 through May 1, 2010. The principles incorporate many of the requirements of the Federal Rules of Civil Procedure and focus on cooperation between the parties to resolve electronic discovery issues. They also discuss such areas as scope of preservation, the identification of electronically-stored information, and production formats. Some of the key points are:

  • The requirement that counsel designate an e-discovery liaison to work toward resolution of issues in dispute;
  • The identification of specific considerations regarding the use of a preservation letter, as well as 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 the information and whether there are alternate means to obtain it;
  • The designation of particular categories of information as “generally not discoverable” so that counsel must confer before 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.”

The Pilot Program can be seen as a logical progression or next step

from the Cooperation Proclamation issued by the Sedona Conference last year. That proclamation was in response to the growing concern over the high costs of litigation, particularly in the area of discovery of ESI. It sought to promote cooperation and sharing of information in the discovery process.

The findings of the Pilot Program in Phase One will be presented at the 7th Circuit Annual Meeting. Phase Two is scheduled to be implemented from June 2010 through May 2011, at which point the E-Discovery Committee will formally present its findings and issue the final principles. The Statement of Purpose and Principles of Phase One may be accessed at http://www.ca7.uscourts.gov/7thCircuit_ElectronicDiscovery.pdf.

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