In an effort to reduce e-discovery costs and court burdens, courts in two jurisdictions have launched pioneering e-discovery programs: the 7th Circuit Electronic Discovery Pilot Program and the Western District of Pennsylvania Electronic Discovery Special Master Program. While very different in design, both programs are far enough along to yield a similar conclusion: the involvement of e-discovery liaisons, focused on e-discovery issues, can be of great assistance to courts and to parties in addressing and resolving problems around e-discovery. This typically results in lower costs and less need for court intervention in the discovery process.
The 7th Circuit E-Discovery Pilot Program
The 7th Circuit program was launched in May 2009. From its inception, the pilot program’s stated goal was to create a roadmap for attorneys to engage in the early and informal exchange of information relating to the preservation of data, both electronic and hard copy, as required by Federal Rule of Civil Procedure 26(f)(2) against the backdrop of efficiency, espoused by Federal Rule of Civil Procedure 1. Accordingly, the Pilot Program Committee developed 11 principles with an eye to improving the efficiency of the discovery process in general and specifically to decreasing the burden of e-discovery on the parties and the court.
During Phase I of the program, the principles were codified as a standing order that was adopted for use in 93 test cases in the Northern District of Illinois. Based on survey results from Phase I, which ended in May 2010, the Pilot Program Committee revised the principles and then initiated Phase II, which involved more than 40 judges and 296 cases throughout the 7th Circuit Phase II concluded in May.
The results of both phases pointed, in particular, to the benefits of Principle 2.02, calling for both parties to designate E-Discovery Liaisons (EDLs) whenever there is any dispute about the preservation or production of electronically stored information (ESI). The EDLs are required to become knowledgeable about a party’s efforts relating to the discovery of ESI. In addition, the EDLs should be, or have access to, individuals knowledgeable about the party’s electronic systems and the technical aspects of e-discovery, including ESI storage and format issues, search methodology, and collection efforts. 100 percent of responding judges and 94 percent of responding attorneys agreed that the involvement of an EDL yielded a more efficient discovery process.
The Western District of Pennsylvania E-Discovery Special Master (EDSM) Program
While judges and lawyers centered in the Chicago area were developing the 7th Circuit pilot program, judges and lawyers about 500 miles to the east, centered in Pittsburgh, were developing an E-Discovery Special Master Program. This program was largely the brainchild of Western District Judge Joy Flowers Conti, assisted by several other Western District judges and subcommittees of local practitioners. In November 2010, the Western District Board of Judges approved the establishment of a list of qualified attorneys to serve as EDSMs. There are currently 48 lawyers meeting experience and training requirements established by the court, who have been approved to serve as EDSMs.
There have not yet been enough cases with EDSMs to draw broad conclusions about the benefits of the program, but three cases in which one of the authors of this article has served as an EDSM can provide “case study” insights. Those cases include one criminal matter, one civil rights class action and one patent dispute. Collectively, the three cases have presented, to date, about two dozen different discovery issues in which the parties could not initially agree to a resolution, including disputes about the general scope of e-discovery, search terms to be used, custodians and date ranges to be searched, metadata to be included in production, the format of production, cost-shifting, a request for sanctions, privilege, work product, waiver and claw-back issues and potential limitations on deposition discovery. Most of those disputes were amicably resolved through recommendations or mediation by the EDSM. Only six (about 25 percent) required written recommendations or informal written opinions, and only one resulted in a party taking exceptions, requiring a review by the court.
Thus, over 95 percent of the issues in those cases were resolved without court intervention, and even on the remaining issue the court had the benefit of the analysis and opinion of the EDSM before being required to rule. Additionally, the use of the EDSM saved all parties substantial money in each case by narrowing disputes, helping the parties identify cost saving alternatives and quickly resolving most remaining issues without the need for extensive briefing, evidentiary hearings or other formal procedures. In each case the EDSM costs were relatively minimal in comparison to amounts saved, and those costs were split by the parties.
The 7th Circuit EDL Principle, and the Western District EDSM Program have significant differences. For example, in the former, each party in a dispute appoints its own EDL, while, in the latter, a single EDSM is selected by the parties and/or appointed by the court. However, in each instance the intervention of “subject matter experts,” focused on the e-discovery issues, assists in streamlining litigation by assisting with efficient resolution of e-discovery issues. This should not be surprising, given that most lawyers and judges have little training in the technical issues surrounding ESI, so the assistance of individuals with such training and focus can help to resolve e-discovery issues. Other courts are also looking for ways to reduce e-discovery disputes and costs. They would do well to follow the examples of the 7th Circuit and Western District of Pennsylvania programs and include EDLs or EDSMs as part of any program they put into place.