Overview of Seventh Circuit’s Electronic Discovery Program

April 20, 2011

In May of 2009, the Seventh Circuit Court of Appeals initiated an Electronic Discovery Pilot Program that was designed to improve pretrial litigation procedures “that would provide fairness and justice to all parties while seeing to reduce the cost and burden of electronic discovery consistent with the Rules of the Federal Rules of Civil Procedure.” The Seventh Circuit Electronic Discovery Pilot Program Committee (the “Committee”) has broken its work down into distinct phases. The Committee’s report on Phase 1 was presented to the Seventh Circuit Bar Association’s Annual Meeting and Judicial Conference on May 3, 2010. This report explains the process and reasoning behind the Committee’s principles related to the discovery of electronically stored information (“Principles”), which will be outlined below. The Committee is currently engaged in Phase 2 of the Pilot Program, which it will report during a presentation at the Seventh Circuit Bar Association’s Annual Meeting and Judicial Conference in May of 2011.
The Committee, which consists of lawyers, judges, and others who are familiar with electronically stored information, created the Principles during the Summer of 2009. Three sub-committees were formed, the Preservation Sub-Committee, the Early Case Assessment Sub-Committee, and the Education Sub-Committee, to address key issues surrounding electronically stored information.

The Principles are designed to reduce the cost and inefficiency associated with discovery of electronically stored information. Borrowing from the Sedona Conference the Principles outline basic concepts of cooperation, proportionality, preservation, production format, and the accompanying duty of counsel to meet and confer in order to identify disputes for early resolution. As an initial matter, the Principles clearly state that an attorney’s representation of a client “is not compromised by conducting discovery in a cooperative manner.” The Principles clearly state that an attorney’s representation of a client “is not compromised by conducting discovery in a cooperative manner.” The Principle on cooperation correctly notes “[t]he failure of counsel and 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.” Despite the somewhat obvious generalized scope of this proposition, it is worth nothing that the first substantive Principle adopted by the Committee recognizes the need for enhanced cooperation in cases involving electronic discovery. While this Principle is embraced in the Federal Rules of Civil Procedure, they mean very little unless they are supported by meaningful sanctions and judicial oversight.

The next Principle relates to proportionality, as set forth in Rule 26(b) (2) (C), Fed. R. Civ. P. IN the interests of efficiency, the Committee explains that the proportionality standard is advanced through “requests for production of ESI and related responses” that are “reasonably targeted, clear, and as specific and practicable.” This Principle, which ties into the need for cooperation between the parties, leads to the mandatory “meet and confer” that is already endorsed by the Federal Rules of Civil Procedure. Here the Committee outlines a specific, step-by-step process for addressing issues surrounding electronic discovery early in the litigation, including a list of topics that both parties should be prepared to discuss at the initial Rule 26(f) conference. These topics include the identification of relevant and discoverable ESI, the scope of discoverable ESI to be preserved by the parties, the format for preservation and production of ESI, the potential for conducting discovery in phases or stages, and the procedures for handling inadvertent production of privileged information and other privilege waiver issues under Rule 502. If the parties cannot resolve these questions, they should bring them to the attention of the Court and the initial Rule 16(b) status conference.

The Principles also address the scope of preservation requests and orders. Noting that vague and overly broad preservation requests are disfavored, the Principles explain that preservation requests involve the transmission of “specific and useful information,” and agreeing on the specific steps that the responding party should take in order to preserve responsive ESI.

On a similar note, the Principles address the scope of preservation, which rests on the continued meet and confer process and the categories of ESI are generally “not discoverable,” thereby requiring a specific request, such as “deleted,” “slack,” “Fragmented,” or “unallocated” data on hard drives, random access memory, online access data, data in metadata fields that are automatically online back-up data that is “substantially duplicative” of other, more accessible data, and other forms of ESI whose preservation, “requires extraordinary affirmative measures that are not utilized in an ordinary course of business.” Finally, the Committee has adopted a Principle that would encourage the parties to stipulate regarding the format of production for electronically stored information. As a general rule, the Committee notes that electronically stored information stored in a database can often be produced by using search terms, and that the requesting party is responsible for the “incremental cost of creating its copy of requested information.” Parties are encouraged to discuss cost-sharing and reach an agreement regarding the specific format for the production of electronically stored information.

The Principles adopted by the Committee are not mandatory to the extent that they deviate or build on the Federal Rules of Civil Procedure or any standing orders pertaining to electronic discovery. Even so, these Principles provide excellent guidance, particularly for those cases where electronic discovery may play a central role. Here, cooperation between lawyers is essential, usually at the front end of the case, mainly because electronic discovery is complicated and requires careful, advance planning. In this regard, the Rule 26(f) conference should require the parties to meet and confer regarding a wide range of issues, followed by narrowly tailored targeted discovery and preservation requests that lower costs by pinpointing specific information that is relevant to the parties’ claims and defenses. If put into practice, these Principles provide the parties with an opportunity to expedite the discovery of electronically stored information and reduce the costs associated with this exercise.

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