Dec. 2011/Jan. 2012 / Features
A Seventh Circuit Pilot Program to Reduce the E-Discovery Burden
Since the 2006 amendments to the Federal Rules of Civil Procedure, practitioners and courts have been trying to apply them, but clear direction is lacking. Attempts often reduce to a call for “increased cooperation,” but that hasn’t been effective, the authors say, because cooperation translates into greater risk for whichever party has the biggest cache of discoverable information. This kind of risk will persist unless there is greater certainty, consistency and agreed upon boundaries in the rules for production of electronically stored information.
Now, according to the authors, a pilot program in the Seventh Circuit is showing promise, because it sets ground rules that provide the certainty and consistency that’s required. The program, which was implemented in October 2009, is based on six formalized Principles. They are (1) cooperation and proportionality, (2) early focus on e-discovery, (3) a designated e-discovery liaison for each party, (4) identification of the scope of preservation, (5) the provision of a framework for effective negotiation, and (6) the provision of an incentive for judicial education on e-discovery matters.
The Principles require preservation requests and responses to be specific, proportional and focused on the relevancy of information rather than its form. Preservation requests are limited in part by identifying six categories of electronically stored information that presumptively should not be preserved or discoverable.
The Seventh Circuit Pilot Program “creates a framework for effective cooperation and negotiation,” the authors conclude, and courts and judges nationwide should consider adopting it.
