7th Circuit eDiscovery Pilot Program Committee Issues Phase 1 Report

The Seventh Circuit eDiscovery Pilot Program Committee has issued Seventh Circuit eDiscovery Pilot Program: Report on Phase One: May 20, 2009-May 1, 2010 (May 2010). Here is most of the executive summary:

The Seventh Circuit Electronic Discovery Pilot Program was initiated in May 2009 as 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 seeking to reduce the cost and burden of electronic discovery consistent with Rule 1 of the Federal Rules of Civil Procedure. The Seventh Circuit Electronic Discovery Pilot Program Committee (“Committee”) targeted its schedule so it could prepare this Report on Phase One for presentation at the Seventh Circuit Bar Association’s Annual Meeting and Judicial Conference on May 3, 2010. This Report contains an explanation of the process and reasoning behind the Committee’s Principles Relating to the Discovery of Electronically Stored Information (“Principles”). It also provides a preliminary, anecdotal “snapshot” of the information gathered regarding the application of the Principles in cases during Phase One of the Pilot Program. In May 2010, the Committee will review the feedback it receives regarding Phase One and this Report. It will then commence Phase Two of the Pilot Program, which will run from July 1, 2010 to May 1, 2011. The Committee intends to present its Report on Phase Two in May 2011, before moving on to Phase Three.

The Committee consists of a diverse and growing group of attorneys, non-attorneys, and judges experienced with the discovery of electronically stored information (“ESI”). The Principles were developed and drafted throughout the summer of 2009. During that time, there were numerous meetings, which included substantial discussion and debate among the members of three subcommittees — the Preservation Subcommittee, the Early Case Assessment Subcommittee, and the Education Subcommittee — to address the key ESI issues identified at the Committee’s first meeting on May 20, 2009, and draft proposed principles in response to these issues. In September 2009, the full Committee reviewed and adopted the Principles, which became effective October 1, 2009, as a part of Phase One. The Principles are contained in Section 2 of this Report.

From October 2009 through March 2010, the Principles were tested in practice. Thirteen (13) judges of the U.S. District Court for the Northern District of Illinois, including five (5) district judges and eight (8) magistrate judges, implemented the Principles in ninety-three (93) civil cases pending on their individual dockets. In March 2010, survey questionnaires were sent to two hundred eighty-five (285) attorneys involved in the Phase One cases as well as to the participating judges. All thirteen (13) judges responded to the Judge Survey Questionnaires, and one hundred and thirty-three (133) attorneys responded to the Attorney Survey Questionnaires. The Committee’s Survey Subcommittee worked closely with the Institute for Advancement of the American Legal System at the University of Denver, and the Federal Judicial Center in Washington, D.C., which is the educational arm of the U.S. Courts, in designing and administering the Surveys. Data analyses of both Surveys are in the Appendix in Section 12.E. and available on-line at www.7thcircuitbar.org.

Because a limited number of judges participated in Phase One, a reader of this Report should be cautious in extrapolating the judges’ responses to the questions posed on the Phase One Judge Survey Questionnaire to the larger population of judges throughout the Seventh Circuit or the country. It would be best for the reader to treat the responses to the Judge Survey as anecdotal expressions of experienced observers. The particular district judges and magistrate judges participating in Phase One, however, were generally positive about the effectiveness of the Principles.

One hundred percent (100%) of the judges either “agreed” or “strongly agreed” that the involvement of e-discovery liaisons required by Principle 2.02 (E-Discovery Liaisons) contributed to a more efficient discovery process.

Over ninety percent (90%) of the judges thought the Principles “increased” or “greatly increased” counsels’ level of attention to the technologies affecting the discovery process and the demonstrated familiarity counsel had with their clients’ electronic data and data systems. Ninety-two percent (92%) of the judges agreed that 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. A summary of these and other survey responses by the participating judges, along with the judges’ specific anecdotal comments and opinions, is contained in Section 9.A. of this Report.

The one hundred and thirty-three (133) attorneys who responded to the Attorney Survey Questionnaire constituted slightly more than forty-six percent (46%) of the two hundred and eighty-five (285) counsel for the parties in the Phase One cases. Each attorney was asked to respond with regard to his or her experience in connection with the single Phase One case in which he or she served as counsel of record. The attorneys responding to the Attorney Survey Questionnaire were fairly evenly divided as to the role of their respective clients regarding ediscovery in their Phase One case. Thirty-three percent (33%) identified themselves as representing a party primarily requesting ESI. Thirty-five percent (35%) represented a party primarily producing ESI. Twenty-five percent (25%) represented a party equally requesting and producing ESI. Seven percent (7%) represented a party neither requesting nor producing ESI. The cases that were selected by the participating judges to be a part of Phase One were at various stages in the litigation process when the Phase One Principles went into effect on October 1, 2009. Consequently, because the discovery phase had already commenced in some of the Phase One cases, not all of the questions posed in the Attorney Survey Questionnaire were applicable to all cases.

A substantial portion of the responding attorneys, forty-three percent (43%), reported that the Principles “increased” or “greatly increased” the fairness of the discovery process. Fifty-five percent (55%) stated they believed the Principles had no effect on the fairness of the discovery process, and just under three percent (3%) felt that the Principles decreased the fairness.

More than thirty-eight percent (38%) of the responding attorneys stated that the Principles increased the parties’ ability to resolve e-discovery disputes without court involvement, sixty-one percent (61%) stated the Principles had no effect on this, and less than one percent (1%) stated the Principles decreased their ability to resolve e-discovery issues without court involvement.

When asked whether the application of the Principles affected their ability to zealously represent their clients, seventy-four percent (74%) of the responding attorneys indicated “no effect” and twenty-two percent (22%) said the Principles increased their ability to zealously represent their clients. Only four percent (4%) of the attorneys indicated a negative effect.

A further summary of these and other survey responses by the participating attorneys, along with those attorneys’ specific anecdotal comments and opinions, is contained in Section 9.B. of this Report.

In addition, during Phase One of the Pilot Program, the Committee’s Education Subcommittee developed an “E-Discovery Program” section on the Seventh Circuit Bar Association’s website (http://www.7thcircuitbar.org) as a resource to assist lawyers in accessing the case law addressing e-discovery issues. The Education Subcommittee has presented two national broadcast webinars, the first on February 20, 2010, titled “Reforming Discovery: The Seventh Circuit E-Discovery Pilot Program,” (scroll down) and the second on April 28, 2010, titled “You and Your Clients: Communicating About Electronic Discovery.” Both webinars were free of charge to the more than 1,000 participants. More webinars are planned.

The Seventh Circuit Electronic Discovery Pilot Program was featured in the November 2009 edition of The Third Branch, which is the newsletter of the federal judiciary. The Pilot Program was also highlighted in numerous privately sponsored seminars and programs across the country. As demand for information about the Pilot Program continued to grow, the Committee established the Communications and Outreach Subcommittee to oversee the flow of information about the Pilot Program to persons or entities planning presentations and seminars regarding the Pilot Program.

During Phase Two, the Committee hopes to expand the geographic reach of the Pilot Program and increase the number of cases and participating judges. The Committee also intends to lengthen the implementation period for Phase Two so the Principles will be tested more comprehensively than in Phase One. The Committee may also modify the Principles based on the Phase One feedback. Additionally, the Committee may establish more subcommittees to address other identified areas of ESI discovery as the Pilot Program continues. […]