Since 2009, the 7th Circuit Electronic Discovery Pilot Program Committee has been conducting a multi-year, multi-phase process 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 e-discovery consistent with Rule 1 of the Federal Rules of Civil Procedure.
The Committee developed and promulgated “Principles Relating to the Discovery of Electronically Stored Information” (Principles), which have been adopted in live cases by trial judges throughout the 7th Circuit. The Principles’ goals are to encourage and incentivize early and meaningful discussion about e-discovery issues before they have a chance to grow into worse problems, such as allegations of spoliation; to require competence on technical issues that come before the court; and to generally promote education on e-discovery among the bar.
The Committee recently completed Phase 2, analyzed the survey data collected from participating judges and lawyers, and issued a formal report on the findings to date (click here for the full Phase 2 Report). The report finds that the Principles promote cooperation and the ability to resolve disputes amicably, the ability to obtain relevant documents and zealously represent clients, and fairness. According to some attorney respondents, these gains may have come in exchange for some perceived increase in cost and delay.
The attorney respondents reported that in most cases the Principles had no effect. The survey data do not provide quantitative data to understand why this was so. But there is qualitative data in the narrative comments to suggest that many cases settle early or before discovery becomes a major issue, many do not involve much discovery and sophisticated parties often are able to work things out themselves.
Where they become relevant, however, the Principles have had overwhelmingly positive effects. Attorneys reported that the Principles:
- Improved levels of cooperation in 36 percent of the cases
- Increased the ability to zealously represent clients in 25 percent of the cases
- Improved the ability to resolve disputes without court involvement in 35 percent of the cases
- Increased the fairness of the e-discovery process in 40 percent of the cases
- Increased the ability to obtain relevant documents in 28 percent of the cases
Any negative feedback was minimal—attorneys reported that the Principles had a negative impact of less than 5 percent in all the above mentioned areas. The judge survey data agrees:
- 78 percent reported improved cooperation (22 percent greatly)
- 75 percent reported that the Principles increased or greatly increased the fairness of the e-discovery process (19 percent greatly)
- 66 percent reported that the Principles increased ability to obtain relevant documents
The judges reported no negative impacts.
While there is consensus among the bench and bar that the Principles improve the “just” resolution of cases, the bench and bar diverge somewhat concerning to what extent the Principles also promote the more “speedy” and “inexpensive” determination of cases.
Most attorneys perceived that the Principles resulted in marginally more discovery disputes, more discovery on discovery, longer discovery periods and greater expense for discovery and the litigation in general. It should be noted, though, that these negative effects were considered substantial only very rarely. Meanwhile, the judges, on balance, saw fewer disputes and speedier resolutions resulting from application of the Principles.
It remains to be determined, then, whether the Principles ultimately will reduce the incidence of discovery disputes and the costs of litigation as the bar’s knowledge and culture around e-discovery matures.
The Committee anticipated that the Principles might increase the incidence of discovery disputes, at least initially. The Principles seek to encourage and incentivize earlier and more substantive discussion of potentially difficult discovery issues, based on the theory that these issues tend to be easier to resolve the earlier they get addressed.
In its Phase 1 Report, the Committee noted that “any reduction in the number of disputes coming before the courts will only be a positive change if the parties are cooperating and constructively resolving discovery issues, and not if the reduction occurs because the parties are being discouraged from seeking relief when needed.” Given that the Principles yield gains in cooperation, access and fairness, it would appear that attorneys generally view any marginally negative effects as an acceptable trade off. One innovation of the Principles has been a clear success: Principle 2.02, which introduced an “e-discovery liaison” with the intention of preventing a bunch of lawyers and judges trying to resolve a technical issue without any technical expertise in the room.
Under the principle, the liaison can be anyone who is available and competent to discuss the technology issues that are the subject of the dispute. The liaison can even be the lawyer in the case. But a lawyer who lacks the technical competence must either acquire such competence or involve a liaison who possesses the necessary technical expertise.
All of the judge respondents whose cases involved liaisons believed that the liaisons contributed to a more efficient discovery process, with 33 percent feeling strongly about it. The attorneys also are quite positive about the liaisons. Where a liaison was used, 94 percent of the attorneys felt that their own liaison contributed to a more efficient discovery process. More than 80 percent of the attorneys felt that their opponent’s liaison contributed to a more efficient discovery process.
The Pilot Program has moved into phase 3. Even in cases that are not part of the Pilot Program, the Principles—and the Committee’s reasoning and survey results—may provide persuasive authority in your next e-discovery dispute.