Exploring e-discovery in federal courts

The first year of a federal e-discovery program is now complete in the 7th Circuit, and despite its success one clear message sets the stage for how the pilot project moves forward: More Indiana judges and attorneys need to step up and get involved.

At an annual joint meeting of the 7th Circuit Bar Association and Judicial Conference for the 7th Circuit May 2-4, more than 600 lawyers and judges from the three-state Circuit converged on downtown Chicago for a conference that had at its core the e-discovery project that’s been under way since October.

With the pilot project serving as a backdrop, several seminars centered on the issue and each person attending a seminar the first day received a 70-page report on the first phase. The full 425-page report is available online at www.7thcircuitbar.org.
 

Holderman

Running Oct. 1, 2009, to May 1, 2010, the pilot program is designed to streamline discovery and resolve e-discovery disputes by encouraging earlier and more informal meetings and conferences between attorneys and the court. A list of established principles identify the formats of this kind of contemporary discovery that are generally not required to be preserved in order to reduce litigation fights and overall costs.

“It’s a new decade, and it’s time for a new approach,” said Chief Judge Frank Holderman from the Northern District of Illinois, who led the pilot project’s first phase along with U.S. Magistrate Judge Nan Nolan. “E-discovery and electronically stored information is something that will be with us for the rest of our legal careers. That’s the way the world is now.”

On the opening day of the conference, Chief Judge Holderman pointed out that during United States Supreme Court Chief Justice John G. Roberts’ visit to Indiana University School of Law – Indianapolis in April, the justice spoke about the high costs of litigation that can stem from massive discovery. Chief Judge Holderman noted the irony that the comments came in Indianapolis, the same city where informal talks began at the 2009 7th Circuit meeting about establishing an e-discovery initiative.

“Judges and lawyers just haven’t been attuned to this … and that’s a frustration,” he said.

Those participating so far say the hope is that this multi-year, multi-phase process will change some of the distrust between opposing counsel and allow attorneys to get what they want in discovery quicker and more efficiently.

Generally, the pilot project is divided into early case assessment and education areas, with each of those subdivided into guidance regarding:

• The duty for attorneys to meet and confer and identify disputes for early resolution;

• E-discovery liaisons, who could be attorneys or third-party consultants familiar with a party’s e-discovery efforts and how those documents are stored or produced;

• Preservation requests and orders;

• Scope of preservation;

• Identification of electronically stored information;

• Production format; and

• Judicial expectations of counsel

During this initial stage, the program’s principles were applied to certain cases throughout the Circuit, with an emphasis on the Northern District of Illinois where Chief Judge Holderman and other key players are situated. More than 2,000 lawyers and judges participated in web seminars on the topic earlier this year; specifically 13 judges within the Northern District of Illinois – five District judges and eight magistrates – brought the concepts into 93 civil cases pending before them. Nearly 300 attorneys participated. While the participation is Illinois-focused, some Indiana and Wisconsin attorneys took part.

The newly released report on phase one shows that all participating judges either agreed or strongly agreed that the involvement of e-discovery liaisons made the process more efficient, and more than 90 percent thought the concepts increased or greatly increased counsels’ level of attention to the technologies involved in the discovery process and how their clients produce discovery from those systems.

Attorneys didn’t have as positive feedback to the e-discovery principles, according to the report. Less than half of the participating attorneys responded, but significantly 61 percent of those found the principles had no effect on the parties’ ability to resolve e-discovery disputes without court involvement. Respondents were fairly evenly divided as to the role of their respective clients regarding e-discovery; however, 43 percent reported that the principles improved the fairness of the discovery process, and 55 percent believed they had no effect on that fairness. Only 3 percent saw a decrease, the report shows.

While the attorney participation isn’t detailed in the full report, those leading the effort say the Indiana and Wisconsin communities weren’t as largely represented as they’d hoped. The little involvement from those states was a disappointment for this stage, leaders said. Tables were set up at the 7th Circuit conference for people to sign up to participate, and several attorneys from Indiana had written their names down.

Leaders hope to expand the geographic reach of the pilot program for the second phase – July 1, 2010, through May 2011 – as well as modify certain parts of the established principles or explore particular nuances that come up relating to e-discovery. This is largely because Chief Judge Holderman and Magistrate Nolan are both from Illinois’ Northern District, but also because other jurisdictions haven’t had the same kind of e-discovery issues in their own cases.

“Fortunately, we’ve been able to dodge those thornier e-discovery issues that others have faced in the Circuit,” said U.S. Magistrate Judge Tim A. Baker in the Southern District of Indiana, who participated in a panel discussion at the conference. “Not everything’s been smooth sailing at every stage, but by and large lawyers here and their clients have been addressing these e-discovery issues early on. That could be why there hasn’t been a rush to join, and I don’t know if there will be, but we certainly have that information.”

Listening to the presentations, Ice Miller attorney Brian Paul said he was enthused about the initiative but would like to see some more cost-shifting factored into the process, if costs are an important reason behind the project. If the courts consider cost-shifting when parties or plaintiffs request documents, that could scale down those initial requests and possibly fine-tune what’s being explored for discovery, he said.

During the conference, judges and lawyers from all jurisdictions said various parts of the pilot project are already being used in pending litigation they have. Sitting on an eight-person panel, Magistrate Judge Baker said he regularly pushes attorneys to meet and confer about discovery issues even before pre-trial conferences. That’s helped him avoid and resolve many possible discovery problems, he said.

Recently, that issue surfaced in a multi-million dollar case in which lawyers hadn’t discussed e-discovery before coming before him. They submitted a case management plan, but Magistrate Judge Baker denied that plan and ordered the attorneys to talk more before submitting a more comprehensive plan within 14 days. He expects that plan to be much more substantive in the discovery area, he said.

“You have to be willing to raise those issues at a pre-trial hearing,” Magistrate Judge Baker said.
 

Lynch

Magistrate Judge Debra McVicker Lynch from the Southern District of Indiana echoed that thought and said she wants attorneys to call her court to set up discovery conferences in order to address any communication issues they might have with opposing counsel.

She has three cases pending where e-discovery seems to be burdensome. After she set evidentiary hearings, the issues went away because counsel started talking more with IT people as a result and resolved the problems. If it’s a matter of one side’s attorney not responding adequately, a conference could motivate that party to respond, she said.

“(E-discovery) is not a subset of discovery anymore … almost every case discovery has some e-component to it,” she said. “But sometimes, we don’t know how complex an issue is.” •