Magistrate Judge Nan Nolan of the U.S. District Court for the Northern District of Illinois had a long background as a criminal defense attorney before becoming a judge. She says that her background left her unprepared for the battles over discovery of electronic evidence she has encountered in the world of civil litigation. "I was not able to get my arms around all of the fighting over discovery," she says. "I know that some people have snickered about this idea that you can get lawyers to make nice and cooperate on discovery. But I believe it is possible."
Under the leadership of Chief Judge James F. Holderman, Nolan has helped launch a pilot program to address electronic discovery issues: 7th Circuit E-Discovery Pilot Program. Taking their cues from, among other sources, the Sedona Conference Cooperation Proclamation, the 7th Circuit E-Discovery Committee is attempting to fix some of the most intractable discovery problems in litigation.
Amendments to the Federal Rules of Civil Procedure put in place at the end of 2006 were supposed to force lawyers to meet and hash out discovery issues early. However, Nolan, Holderman and other judges are frustrated that despite the rule changes, electronic discovery continues to be an expensive and inefficient process in need of reform. "The central premise of the 2006 amendments is to meet and confer with the other side and settle issues early," says Magistrate Judge John Facciola of the U.S. District Court for District of Columbia. "The fact that this project exists suggests that the hopes have not been fully realized."
The 7th Circuit sought to involve all parties in the process, including trial judges and lawyers, whether they are in-house counsel, private practitioners, government attorneys, academics, or litigation consultants. An effort was even made to bring litigants into the process, so the clients’ perspective could be heard. But as is often the case when lawyers confront discovery issues, discussions became so heated that Nolan had to step in to mediate so that a final project proposal could be drafted. "I had to do some mediation to make sure all sides got heard," she says. "It was a little trying, but it was probably good for everyone to find out they could confront the issues and not have everything implode."
The 7th Circuit, which covers the states of Illinois, Indiana and Wisconsin, launched the E-Discovery Committee in May of 2009 to take action to reduce what was perceived to be the rising burden and cost of discovery. They produced a set of principles, which provide discovery guidance for lawyers in cases that parties agree to litigate as part of this project. Nolan says that since the project has been implemented there has been very little conflict over discovery. "I think it is working, because of every case I have heard in this project, I have not had one [discovery] motion," she says.
However, the court has only just concluded phase one of the project and a new, two-year phase two should begin this fall.
Phase two will increase the number of cases, as well as participating lawyers and judges, and incorporate suggested changes from the first phase. The first phase was relatively limited in scope, so that the feedback and surveys did not always provide meaningful data. The committee hopes that with more participants, they will get more meaningful survey results and feedback to further refine and improve the project’s guidelines.
What do lawyers need from the bench to navigate e-discovery disputes? The pilot project explicitly states that "an attorney’s zealous representation of a client is NOT compromised by conducting discovery in a cooperative manner," creating a foundation for a cooperative process. "The key is that it sets out that noncooperation is sanctionable," says Steven Teppler with Edelson McGuire, who is a member of the committee and had several cases that were part of the project. "How can you do discovery if the other side won’t? But if it looks like it will be a fair process, then it makes parties less obstinate."
PRINCIPLES IN PRACTICE
Among other things, the principles created a Standing Order Relating to the Discovery of Electronically Stored Information. With the order in place, lawyers are obligated to address e-discovery, but also understand that the principles will help define the scope and processes to be deployed. "With the standing order I don’t have to explain to people why it needs to be done," says Teppler. "It was also important to make the process as fair as possible, so that no one side feels they are losing rights."
The e-discovery principles deal with details not always explicitly covered by the Federal Rules of Civil Procedure or court ruling, like the types of data accessible for discovery and how it should be produced. One innovation lawyers involved in the project were reportedly appreciative of is the possibility to have an e-discovery liaison appointed to facilitate e-discovery negotiations. These liaisons are attorneys, consultants, or clients with knowledge of the technical aspects of discovery in a case.
The areas the project leaders hope to improve upon in phase two include search and the handling of privileged information. In the coming years, the pilot program will address these and other issues by offering lawyers more direction in the form of commentary, which is being drafted now. This will include advice on choosing search terms, the types of search and review technology available, and other guidance in layman’s terms.
Another emphasis of the next stage will be phased discovery as a way to limit conflict. That means a greater emphasis on identifying key custodians of potentially relevant information and sampling data sets in order to determine the likelihood of discovering relevant documents early in litigation. "The idea is to provide more guidance than in the original principles," says Alex Buck, e-discovery and technology counsel with Bartlit Beck Herman Palenchar & Scott in Chicago and a member of the committee. "We will try to put technical issues in layman’s terms to help lawyers get a handle on e-discovery."
Unfortunately, the number of judges who participated in and were surveyed in phase one was too small to be statistically significant, but all agreed that the involvement of e-discovery liaisons contributed to a more efficient discovery process. Most thought the project increased the level of attention to discovery disputes and resolved them before judges were forced to facilitate agreements.
Attorneys surveyed in phase one reported that being compelled to cooperate and collaborate on discovery more actively did not seem to affect their ability to zealously represent their clients. Seventy-four percent of the responding attorneys said they found no negative impact on their ability to represent their clients and 22 percent said the principles increased their ability to do so. However, 4 percent of the attorneys said the project had a negative impact.
Lawyers were less impressed with the project’s ability to increase fairness and reduce disputes. Forty-three percent said that the principles increased the fairness of the discovery process, but 55 percent reported no discernable change. Three percent felt that the principles actually decreased the fairness. More than 38 percent of the responding attorneys stated that the principles increased their ability to resolve e-discovery disputes without court involvement, 61 percent said they had no effect, and less than 1 percent said it decreased their ability to resolve e-discovery issues without court involvement.
Despite the amendments to the Federal Rules of Civil Procedure and many hundreds of e-discovery-related rulings and decisions across the country, there is a need for such a program to provide more detailed instructions for this thorny process, observes Facciola. Other courts are experimenting with local e-discovery rules and case management programs, but a pilot project such as this one may be hard to replicate. "There are idiosyncrasies and local variations in orders from one judge to another that make this kind of project hard to do," says Facciola. "It's a stunning achievement that the 7th was able to get all the judges on board and in agreement with the program."
Today, e-discovery rules are often a patchwork of rulings and guidance that varies by jurisdiction. Participants in the 7th Circuit pilot program hope that other court systems will find their results useful and borrow from the principles. "I hope that other people steal from this," says Teppler. "I’ve seen 180 degree turnaround from adversaries who were opposed to cooperation. It’s taking time, but I think we can create a process that all lawyers can agree is fair."
Reposted from: http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202463869031