the Seventh Circuit’sclosely watched pilot program on electronic discovery entered its second phase in August, after recording tentatively positive results in May from its first phase. Survey results after the first six-month phase indicated that forcing parties to adhere to a set of pretrial principles can help minimize e-dis-covery costs and disputes.
James Holderman, chief judge for the Northern District of Illinois, launched the program in May 2009 after hearing complaints from attorneys and other judges about the overwhelming costs of e-discovery. Some lawyers were settling cases based on the potential cost of e-discovery, not on the merits of the case, Holderman says. Although phase one lasted only six months, Holderman is already optimistic for the program to go national by 2012. “Our goal is to change the culture of pretrial litigation for the better,” he says.
At Holderman’s request, federal magistrate judge Nan Nolan chaired a committee of 40 e-discovery experts — plaintiffs and defense lawyers, in-house counsel, and e-discovery vendors — to craft a set of principles for parties to follow at the outset of a case. Through a standing order, 13 district court judges implemented the pilot program in 93 civil cases in the Northern District of Illinois between October 2009 and March 2010.
Focusing on cooperation, transparency, and proportionality, the principles are aimed at promoting early dispute resolution in e-discovery without court intervention. Most of the principles are related to early case assessment, especially the scope and proportionality of discovery, and encourage parties to submit preservation requests that are not overly broad or vague. The pilot program included a webinar with panelists who discussed how to make the e-discovery process more manageable and affordable.
Phase two, which will end in May 2012, will focus on more quantitative analysis to see whether the program reduces costs. The Federal Judicial Center has conducted a baseline test of e-discovery costs to better gauge the program’s effectiveness.
Alexandra Buck, cochair of the pilot program’s communication and outreach subcommittee, says the principles help focus a case to avoid disproportionate e-discovery costs, which she attributes to the “overzealous advocacy” of lawyers. For instance, one of the principles requires parties to appoint an e-discovery liaison as a single point of contact who can talk to the judge and the other side during disputes.
“You can still zealously advocate for your client without turning over every stone,” Buck says.
As part of the pilot program, Buck’s subcommittee provided guidance to participants on the technical aspects of electronic information storage and preservation. One of the principles asks opposing parties to discuss potential methodologies for identifying electronically stored information and to familiarize themselves with the e-discovery provisions of the Federal Rules of Civil Procedure.
“Just because you use a BlackBerry doesn’t mean you’re technologically proficient in e-discovery,” says Steven Teppler, who cochairs the American Bar Association’s e-discovery committee. “The principles actually encourage lawyers to get familiar with the technology that’s in question or engage with someone who is.”
At the end of phase one, the committee surveyed the 285 counsel involved in phase one cases for feedback. Almost 50 percent of the 133 attorneys who responded said the principles “increased” or “greatly increased” the fairness of the discovery process. Holderman says the follow-up survey reflects an attitude shift among lawyers about pretrial cooperation. Prior to the pilot program, Holderman says, lawyers expressed concerns about whether pretrial cooperation might hinder their ability to be zealous advocates for their clients. But after the phase one evaluation, 96 percent of respondents said that cooperation either had a positive impact or no impact on their ability as their client’s representative.
On the basis of the survey results, the committee made some tweaks to the principles. Buck says the phase two principles contain stronger wording since survey respondents indicated that they wanted more concrete guidance and detailed commentary. More than 30 judges in the Seventh Circuit have already committed to implementing the principles in phase two.
As phase two gains momentum, the committee will also be rolling out more educational webinars in its ongoing push to make this a national program.
“When we can get to the point where the systems for pretrial discovery gives lawyers confidence that the other side is not pulling the wool over their eyes, then people will be more trusting and more cooperative,” Holderman says. “It will be less expensive, and we will get to the nub of disputes faster and better.” — Nicole Hong
A sampling of principles from the Seventh Circuit Electronic Discovery Pilot Program: