Every day that I talk to customers, I personally encounter the need to bridge the knowledge and political gaps to make policy and purchasing decisions within corporations regarding eDiscovery. The other side of the coin has been that judges and outside counsel, as well as industry experts are coming together to find solutions to deal with these eDiscovery challenges in the courtroom. The 7th Circuit Principles do just that, and are driving proactive behavior in addressing ESI, much to the pleasure of Judges.
It worked in the 7th Circuit, and evangelists are jumping on board in other Circuits, including the 9th Circuit. Art Gollwitzer, previously lived in Chicago and is a member of the 7th Circuit eDiscovery Pilot Program Committee. He practices patent law and was key in the formation of the Principles, notably the Preservation Principle 2.04. Having moved to Austin, Texas, Art now heads the National Outreach Committee for the 7th Circuit Program. The timing is right for this new program, as judges and practitioners around the country are looking for guidance on handling ESI. Particular pain points for parties are: different rules across jurisdictions, data sources, formats, and the scope of preservation. Satisfying the need for direction, the 7th Circuit’s Principles provide a checklist of important considerations for the initial meet & confer conference, as well as even-handed rules regarding preserving and producing ESI that provide more granularity to the Federal Rules.
In a recent case, Joao Control & Monitoring Systems of California, LLC v. ACTI Corp., et al., Case No. SA CV10-1909-DOC, in the Central District of California, Art was pleasantly surprised to see language that he helped write in a draft ESI order handed out by the court to the parties for their consideration at the initial status conference. “I was very happy to see the exact language that our committee drafted after many hours of discussion in the summer of 2009 in the court’s proposed order,” Art explained. “We worked hard to reduce the cost and burden of electronic discovery and to prevent ESI discovery from turning into a game of ‘gotcha’.”
The goal of the National Outreach Committee is to spread the word about the 7th Circuit’s ESI Program and the benefits. “We envision spreading the word through articles, speeches, and ‘grass-roots’ or word-of-mouth efforts.” To that end, liaisons in each Circuit or even each district can talk to judges and encourage colleagues to propose that courts adopt the Committee’s principles in Rule 26(f) orders on a case-by-case basis. We also can describe the program and its principles at local bar associations and Inns of Court. Finally, we can volunteer for local rules committees or comment on ESI proposals for local rules,” explains Art.
With each jurisdiction having its own local rules and each legal community having its own flavor, the exercise of bringing all stakeholders into the process to contribute to the Principles is unprecedented. Whether each Circuit starts their own Pilot Programs or adopts the 7th Circuits’ Principles to start and then modifies as necessary, remains to be seen. What we do know is results from the 7th Circuit have been positive and that they have supporters nationally. The hope is that courts and practitioners will start with our Principles in order to avoid a crazy-quilt of ESI rules across the country.
The 7th Circuit Electronic Discovery Pilot Program Committee was formed in May 2009 to conduct a multi-year, multi-phase project to develop, implement, evaluate, and improve pretrial litigation procedures that would provide fairness and justice to all parties while seeking to reduce the cost and burden of electronic discovery consistent with Rule 1 of the Federal Rules of Civil Procedure.
The Committee is unique in that it is comprised of the most talented experts in the 7th Circuit from all sectors of the bar, including: government lawyers, plaintiffs’ lawyers, defense lawyers, and in-house lawyers from companies with large information systems, as well as experts in relevant fields of technology.
The Committee developed and promulgated “Principles Relating to the Discovery of Electronically Stored Information” (“Principles”), and a Proposed Standing Orderby which participating judges could implement the Principles in the Pilot Program’s test cases. Practicing lawyers wrote the Principles under the guidance of federal judges in Chicago, and the end-result is a consensus from experts in the field of eDiscovery rather than an approach dictated by the courts.
The Committee originally had 50 members by the end of Phase One in May 2010, and now has 80 members. The Committee includes members from all 7 federal districts in the 7th Circuit and around the country and is Chaired by Chief Judge Holderman and Magistrate Judge Nolan of the Northern District of Illinois. The Program has grown from 12 participating judges and just under 100 cases studied for a 6 month period in Phase One, to more than 36 participating judges and 100s of cases in which the Principles will be tested during the Phase Two period (May 2010 – May 2012).
From October 2009 through March 2010, 13 judges of the United States District Court for the Northern District of Illinois implemented the Phase One Principles in 93 civil cases pending on their individuals dockets. On February 16, 2010, the Phase One Survey questionnaires were sent by email to the 285 lead counsel listed for each party in the Pilot Program cases, as well as the 13 judges from the U.S. District Court for the Northern District of Illinois. Survey responses were collected until March 7, 2010 on and all 13 judges responded while only 133 attorneys out of the 285 responded, and the results were sent to the Federal Judicial Center and to the IAALS in Denver for processing and analysis.
The general consensus of the participating judges overwhelmingly felt that the Principles were having a positive effect on counsel’s cooperation with opposing counsel and on counsel’s knowledge of procedures to be followed when addressing electronic discovery issues. The judges felt that the involvement of e-discovery liaisons required by Principle 2.02 contributed to a more efficient and cost effective discovery process. Many of the participating lawyers reported little impact on their cases, presumably mostly because of the limited duration of Phase One. But those lawyers who did see an effect from the application of the Principles in their cases overwhelmingly reported that the effect was positive in terms of promoting fairness, fostering more amicable dispute resolution, and facilitating their advocacy on behalf of their clients.
While most attorneys are following the guidance of Principle 2.01 (a) and (c), Duty to Meet and Confer on Discovery and to Identify Disputes for Early Resolution, it is barely the majority. And curiously, a significant minority of attorneys acknowledged they had not familiarized themselves with their client’s information systems or had early discussions with their opponents about ESI preservation issues even though they were applicable in the case.
What does this suggest?
That the landscape is improving, but that we still have a long way to go. Why would even one of these attorneys with a case in the Pilot Program ignore these relevant ESI issues? One of the major problems with the vagueness of the Federal Rules was a lack of clear cut guidance, and now even though there is a Standing Order in the case providing guidance, and that Principle 2.01 (d) outlines sanctions could in fact be imposed for failure to comply, some lawyers still did not! I can only surmise it is an issue of education.
I often suggest in meetings with our customers regarding archiving or eDiscovery capabilities, that they should first have a handle on what systems they have in-house and to be able to quickly communicate that to outside counsel. As a further measure, they should have a “cheat sheet” that brings outside counsel up to speed on their data maps and how each business unit deals with data. This saves time and money and prevents inconsistencies with production as well as the need to reinvent the wheel for each and every new outside lawyer representing the company. As we see more eDiscovery capabilities coming inside the corporate walls, these technology challenges for outside counsel should be minimized, the amount of data should be able to be reduced by archiving and deduplication, and organization should be more achievable with automated document retention schedules.
Phase Two was originally planned to last one year, from May 2010 to May 2011, however a 2 year duration was found to be preferable for a fuller evaluation of the Principles’ application during Phase Two. The Committee intends to present its Final Report on Phase Two next year, in May 2012 at the 7th Circuit Bar Association Meeting, before moving on to Phase Three. There were only slight modifications to the Principles form Phase I to II, and they essentially tightened up requirements adding specificity to the factors that need to be considered in the “identification” of relevant and discoverable ESI. Stay tuned for more exciting news regarding the National Outreach Committee and the Phase II Report.
Call to Action
Every Circuit should be forming a Committee and bringing practitioners, judges and experts together to weigh in on these important ESI issues. There is a successful model available with hard data. The 7th Circuit’s Principles and Standing Orderare a good place to start.