Phase 2 of Discovery Pilot Provides Glimpse into Future of E-Discovery

Phase 2 of Discovery Pilot Provides Glimpse into Future of E-Discovery

A huge effort to streamline the e-discovery process called The Seventh Circuit Electronic Discovery Pilot Program Committee just released their May 2012 Phase 2  report  of their pilot program. Their goal in conducting this extensive survey and report was to “develop, implement, evaluate, and improve pretrial litigation procedures that would provide fairness and justice to all parties while reducing the cost and burden of electronic discovery.” That all sounds well and good, but let’s get to the specifics and see how this could actually relate to your firm or corporation.

In addition to developing and implementing principles for a more streamlined discovery process in 296 pilot cases with 40 participating judges, the Committee surveyed over 6,000 e-filing attorneys in all 7 districts of the seventh circuit. The Committee also increased membership of e-discovery experts from 50 members and advisors at the end of phase one to over 150. Essentially, phase two of the program dramatically increased survey participants, pilot cases, and committee members to ensure more representative and accurate data on the effectiveness of these principles.

The results were quite encouraging. 100% of responding judges in both phase one and phase two surveys agreed or strongly agreed that the involvement of an e-discovery liaison (one of the principles) has contributed to a more efficient discovery process. E-discovery liaisons are essentially experts in e-discovery who must be knowledgeable about the party’s e-discovery efforts and the more complicated technical aspects of the field. They can be attorneys (in-house or outside counsel), third party consultants, or employees of the party. Their expertise allows both sides to narrow their focus in a practical way and find mutually agreeable and beneficial solutions to disputes that arise during discovery. These solutions could take the form of a more narrowed document request that excludes items that are almost certainly irrelevant to the case at hand, an agreement on appropriate formats for documents, or other more specific solutions to disagreements that arise in the meet and confer process.

Participating attorneys results indicated there may be work yet to go, but are also still quite positive. 55% of participating attorneys responded that the principles had “No effect,” but 40% of phase two attorneys thought that the principles “increased or greatly increased fairness.” To borrow some medical terminology, it appears that the principles are at least sticking true to the idea of “First, do no harm.”

One of the biggest goals of this initiative is to allow the discovery of electronically stored information (ESI) without court intervention. If done correctly, this could eliminate substantial costs for both counsels and the court itself. In order to accomplish this, the committee relies on cooperation between attorneys of both sides. This can initially seem like a bit of wishful thinking, but the committee argues that, “The failure of counsel or the parties to litigation to cooperate in facilitating and reasonably limiting discovery requests and responses raises litigation costs and contributes to the risk of sanctions.” As higher litigation costs and sanctions negatively impact the client, cooperation with opposing counsel in the e-discovery process can actually benefit the client and the firm.

In practice these principles stress the importance for both parties to meet and set clear expectations, methodology, and formatting for discovery documents while also making requests for production of ESI and responses that are reasonably targeted, clear, and as specific as practicable. If this is all still sounds like wishful thinking, it may be reassuring for some and worrisome for others to note that the principles do provide some teeth for the court to enforce cooperation. If the court determines that any counsel or party in a case has failed to cooperate and participate in good faith in the meet and confer process or is impeding the purpose of the principles, the court may require additional discussions prior to the commencement of discovery, and may impose sanctions if appropriate.

Phase two also saw the birth of the website, which contains a wealth of information about the committee, its principles, relevant case law, related news, and the reports themselves. This committee could have a wide-ranging impact on litigation across the country, and the website enables anyone to make sure they are up-to-date on this potentially far-reaching pilot program. We encourage you to take a close look.

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