Ever since becoming chief judge of the U.S. District Court for the Northern District of Illinois four years ago, James Holderman has listened to the same lament from business executives and attorneys about the state of electronic discovery: It’s expensive, burdensome and time consuming for everyone involved. Over and over, he heard about the need to minimize that burden.
In 2009, Holderman, along with Federal Magistrate Judge Nan Nolan, created the 7th Circuit Electronic Discovery Pilot Program. The pilot program is not the first effort to address the problems with e-discovery. But Holderman and the large committee of legal professionals involved in the project have attracted nationwide attention for their novel approach to solving the problem.
Not only did the committee formulate core principles for fairly and efficiently conducting e-discovery, they tested the principles in real cases throughout the 7th Circuit and surveyed participants on the effects.
“The one thing that makes this really different is that it’s being tested on live cases. [We] see what people are actually experiencing rather than just saying, ‘This is a what we think is a great idea,’” says Thomas Lidbury, the program’s early case assessment subcommittee co-chair.
From October 2009 through March 2010, 13 judges in Holderman’s district implemented the pilot program’s principles in 93 different cases. This brief “Phase One” provided a preliminary snapshot of how the principles affected litigation, according to the “Report on Phase One” that was released in May.
In surveys that were sent to the participating judges and 285 attorneys during Phase One, results showed the principles helped the pretrial process run faster and smoother. Ninety-two percent of the judges agreed the principles “had a positive effect on counsels’ ability to resolve discovery disputes before requesting court involvement and reach agreements on how to handle the inadvertent disclosure of privileged information or work product.”
Phase Two began in July. It will continue for at least a year and uses a larger sample size. The extended length will accommodate slow-moving cases and allow the committee to better analyze the benefits of their principles as well as adjustments that still need to be made.
The continually growing committee has lofty goals. Although it’s still quite new, Holderman believes people are drawn to the program because they see the possibility of a solution.
“We’re not just dealing with it,” Holderman says. “We’re going to solve it.”
The pilot program committee includes all sides of the legal community: plaintiffs, defense and in-house attorneys; judges; experts in academia; and e-discovery vendors.
The committee’s first goal was to “develop guiding principles for the discovery of ESI [Electronically Stored Information] that are fair to all parties and minimize the cost and burden of discovery in proportion to the litigation,” according to the Phase One report. (The document is available at www.7thcircuitbar.org.)
At initial meetings in 2009, the committee quickly figured out the four problem areas that it would address: cooperation, discovery proportionality, early case assessment and education.
Most of these are already mentioned in the Federal Rules of Civil Procedure, says Karen Quirk, the pilot program’s early case assessment subcommittee co-chair. Unfortunately, parties sometimes lose sight of them in the heat of litigation.
Because of the committee’s diversity, it took more work to hash out the specific principles. The early case assessment section includes tasks that meet-and-confer conferences should accomplish, explains the types of ESI that are generally discoverable or non-discoverable, and shows how to give a proper response to a preservation request (see “Specific Strategies”).
The cooperation and proportionality principles underscore the need to keep requests and costs “reasonably targeted, clear, and as specific as practicable.” The education principles briefly explain the duty to become and remain knowledgeable about e-discovery.
Making a Difference
Holderman says the result was a product of substantial debate and compromise. The compromise seems largely successful.
In the survey, 84 percent of the judges agreed that the principles “increased” or “greatly increased” the level of cooperation between counsel.
The principles also “increased” or “greatly increased” the fairness of the discovery process, according to 43 percent of the responding attorneys. But more than half— 55 percent—stated they didn’t see an effect.
It turned out that one of the most successful principles—the mandatory involvement of e-discovery liaisons—also began as one of the committee’s most controversial. The liaison is a court representative from each litigant who is knowledgeable about the party’s e-discovery efforts and familiar with their electronic systems.
All of the surveyed judges either “agreed” or “strongly agreed” that the involvement of e-discovery liaisons contributed to more efficient discovery.
Initially, some committee members thought an e-discovery liaison would require litigants to hire more experts or incur more cost. But it doesn’t, explained Quirk, who recently left Winston & Strawn with plans to go in-house. An e-discovery liaison can even be the counsel of record.
Holderman says the program has generated enough buzz nationwide that counsel anywhere could cite the principles in court as a useful guidance.
“Even if you’re not in a case [with] a judge that has adopted the pilot program,” Quirk says, “you can still use these principles as a road map.”