As a solution to these costs, the eDiscovery cognoscenti are emphasizing the concept of “proportionality.”  Proportionality typically requires that the benefits of discovery be commensurate with its corresponding burdens.  Under the Federal Rules of Civil Procedure, the directive that discovery be proportional is found in Rules 26(c), 26(b)(2)(C) and Rule 26(b)(2)(B).  Under Rule 26(c), courts may generally issue protective orders that limit or even proscribe discovery that causes “annoyance, embarrassment, oppression, or undue burden or expense.”  More specifics are set forth in Rule 26(b)(2)(C), which enables courts to restrict discovery if the requests are unreasonably cumulative or duplicative, the discovery can be obtained from an alternative source that is less expensive or burdensome, or the burden or expense of the discovery outweighs its benefit.  In the specific context of electronic discovery, Rule 26(b)(2)(B) restricts the discovery of backup tapes and other electronically stored information that are “not reasonably accessible” due to “undue burden or cost.”

Despite the existence of these provisions, they are often bypassed.  The most recent and notable example of this trend is found in Pippins v. KPMG (S.D.N.Y. Oct. 7, 2011).  In Pippins, the court ordered the defendant accounting firm to continue preserving thousands of employee hard drives.  In so doing, the court sidestepped the firm’s proportionality argument, citing Orbit One v. Numerex (S.D.N.Y. 2010) for the premise that such a standard is “too amorphous” and therefore unworkable.  Regardless of cost or burden, the court reasoned that “prudence” required preservation of all relevant materials “until a more precise definition [of proportionality] is created by rule.”

The Pippins order and its associated costs for the firm – potentially into the millions of dollars – has given new fuel to the argument that an amended federal rule should be implemented to include a more express mandate regarding proportionality.  Surprisingly enough, a blueprint for such an amended rule is already in place in the State of Utah.  Effective November 1, 2011, Utah implemented sweeping changes to civil discovery practice through amended Civil Procedure Rule 26.  The new rule makes proportionality the standard now governing eDiscovery in Utah.

Proportionality Dictates the Scope of Permissible Discovery

Utah Rule 26 has changed the permissible scope of discovery to expressly condition that all discovery meet the standards of proportionality.  That means parties may seek discovery of relevant, non-privileged materials “if the discovery satisfies the standards of proportionality.”  This effectively shifts the burden of proof on proportionality from the responding party to the requesting party.  Indeed, Utah Rule 26(b)(3) specifically codifies this stunning change:  “The party seeking discovery always has the burden of showing proportionality and relevance.”  This stands in sharp contrast to Federal Rules 26(b)(2) and 26(c), which require the responding party to show the discovery is not proportional.

The “standards of proportionality” that have been read into Utah Rule 26 incorporate those found in Federal Rule 26(b)(2)(C).  In addition, Utah Rule 26 requires that discovery be “reasonable.”  Reasonableness is to be determined on the needs of a given case such as the amount in controversy, the parties’ resources, the complexity and importance of the issues, and the role of the discovery in addressing such issues.  Last but not least, discovery must expressly comply with the cost cutting mandate of Rule 1 and thereby “further the just, speedy and inexpensive determination of the case.”

Proportionality Limits the Amount of Discovery

To further address the burdens and costs of disproportionate discovery, Utah Rule 26(c) limits the amount of discovery that parties may conduct as a matter of right based on the specific amounts in controversy.  For those matters involving damages of $300,000 or more, parties may propound 20 interrogatories, document requests and requests for admissions.  Total fact deposition time is restricted to a mere 30 hours.  For matters between $50,000 and $300,000, those figures are halved.  And for matters under $50,000, only five document requests and requests for admissions are allotted to the parties.  Fact depositions are curtailed to three hours total per side, while interrogatories are eliminated.

If these limits are too restrictive, parties may request “extraordinary discovery” under Rule 26(c)(6).  However, any such request must demonstrate that the sought after discovery is “necessary and proportional” under the rules.  The parties must also certify that a budget for the discovery has been “reviewed and approved.”

A Potential Model for Federal Discovery Rule Amendments

Utah Rule 26 could perhaps serve as a model for amending the scope of permissible discovery under the Federal Rules.  Like Utah Rule 26, Federal Rule 26 could be amended to expressly condition discovery on meeting the principles of proportionality.  The Federal Rules could also be modified to ensure the propounding party always has the burden of demonstrating the fact specific good cause for its discovery.  Doing so would undoubtedly force counsel and client to be more precise with their requests and do away with the current regime of “promiscuous discovery.”  Calcor Space Facility, Inc. v. Superior Court, 53 Cal.App.4th 216, 223 (1997) (urging courts to “aggressively” curb discovery abuses which, “like a cancerous growth, can destroy a meritorious cause or defense”).

Tiering the amounts of permitted discovery based on alleged damages could also reduce the costs of discovery.  With limited deposition time and fewer document requests, discovery of necessity would likely focus on the merits instead of eDiscovery sideshows.  Coupling this with an “extraordinary discovery” provision would enable courts to exercise greater control over the process and ensure that genuinely complex matters are litigated efficiently.

If all of this seems like a radical departure from established discovery practice, consider that the new Model Order on E-Discovery in Patent Cases has also incorporated tiered and extraordinary discovery provisions.  See DCG Systems v. Checkpoint Technologies (N.D. Ca. Nov. 2, 2011) (adopting the model order and explaining the benefits of limiting eDiscovery in patent cases).

For those who are seeking a vision of how proportionality might be incorporated into the Federal Rules, new Utah Rule 26 could be a blueprint for doing so.

The Subcommittee’s primary purpose was to discuss “preservation and sanctions issues” by using the following topics as guidelines:

• The nature and scope of the current “problem”
• The role of technology
• Possible solutions to the problem

Counsel from large companies like Google, General Electric, and Exxon Mobil participated side by side with outside counsel from both plaintiffs’ and defense bar to discuss what some characterized as a lack of clear direction in the current Rules.  Government lawyers, academics, and federal judges including Judges David Campbell (D. Az.), Shira Scheindlin (S.D.N.Y.), Paul Grimm (D. Md.), John Facciola (D.D.C.), Lee Rosenthal (S.D. Tx.), Michael Mosman (D. Ore.), and Nan Nolan (N. D. Ill.) helped round out the field to make for a lively discussion with multiple perspectives represented.  The following summary highlights some of the key viewpoints and areas of contention debated throughout the day.[1]

The nature and scope of the problem

An underlying theme throughout the day was whether or not preservation and sanctions challenges warrant amending the Rules.  Not surprisingly, counsel for large organizations that commonly bear the brunt of large and frequent document requests lobbied for rule amendments that provide more certainty around when the duty to preserve evidence is triggered, the scope of that duty, and how sanctions are applied.

In support of this position, some corporate attorneys argued that the lack of certainty in the current Rules unfairly requires organizations to err on the side of preserving evidence early and broadly to avoid the risk of sanctions.  Since preserving evidence can be extremely expensive and the duty may be triggered before litigation even begins, they argue that changes to the Rules are necessary.  One corporate attorney framed the issue by providing specific details about costs associated with preserving data for different cases.  He explained that in one situation, his organization has spent more than $5 million to locate, collect, preserve, and maintain data for an ongoing matter even though a complaint has never been filed.  He went on to explain the dilemma by stating: “not preserving asks us to take a chance with our reputation.”

In response, a few attendees questioned how preservation related expenses could spiral so high even before attorney review.  Others pointed out that if the current Rules were better utilized, specifically the meet-and-confer provisions of Rule 26(f), then many preservation challenges could be minimized.  Supporters of better Rule 26(f) engagement complained that counsel for large organizations often refuse to discuss preservation related issues and thereby fuel problems related to the scope of preservation themselves.   Others suggested that if organizations enforced better information management policies instead of keeping “everything forever”, then the magnitude of the problem could be reduced.

Technology

The Subcommittee members generally agreed that the evolution of technology has led to massive data growth which creates new electronic data challenges.  Electronically stored information (ESI) is often duplicative, typically resides in many different technology systems, and can be difficult to locate on a case by case basis.  There was some thoughtful discussion about how data archiving and cloud computing technology are important tools for helping organizations manage these information problems more effectively.  Another commentator acknowledged that although “predictive coding” may be helpful for “reviewing” data, it requires significant human involvement and simply does not solve the problem at hand.

Surprisingly, aside from the comments above, the technology discussion focused mainly on the issue of what constitutes “possession, custody or control” under Rule 34 in today’s environment of social media, cloud computing, and mobile devices.  Unfortunately, there was no discussion of either the role legal technology solutions play in minimizing risk and cost or of the impact the current Rules have on public policy.  For example, the Subcommittee did not address whether organizations that invest in technology in order to automate their internal data management and electronic discovery process should be afforded more protection under Rule 26(b)(2)(B) (“not reasonably accessible because of undue burden or cost”) than organizations that choose not to invest in technology.  If an organization’s technology investment (or lack thereof) is not a factor, does Rule 26(b)(2)(B) have the unintended effect of stifling meaningful legal technology investment by some organizations?  Similarly, do advancements in legal technology diminish the need for a Rule amendment that, at its core, is geared toward reducing costs?  In my opinion, the manner in which organizations are using technology today is an important factor that warrants deeper discussion and a subject I intend to address in a future publication soon.  Stay tuned.

Possible solutions

Discussion about possible solutions to the problem revealed more about the contrasting viewpoints in the room.  Notably, the Department of Justice representatives and those typically aligned with the plaintiffs’ bar tended to lobby for better adherence to the framework contained in the existing Rules in lieu of drafting new Rules.  These folks generally appeared to fall into the “No New Rule” or “Not Yet” camp, and cited the relative newness of the 2006 Rule Amendments and the fact that only about one percent of federal cases involve sanctions in support of their position that Rule amendments are premature or not needed.  Along the same lines, many called for further study and evaluation of the issues through organizations such as The Sedona Conference and the 7th Circuit Electronic Discovery Pilot Program.  Others referenced the importance of looking to evolving case law for more guidance before moving forward with Rule amendments.

In stark contrast, those on the other side of the aisle that typically represent large organizations, lobbied for bright line rules or at least “guideposts” to provide more certainty regarding preservation.  For example, one participant suggested that the duty to preserve evidence should begin when a complaint is served.  Another suggested that the duty should be triggered when a potential litigant is “reasonably certain to be a party to litigation” – a standard that is arguably narrower than the commonly applied “reasonably anticipates litigation” standard articulated in Judge Scheindlin’s frequently cited Zubulake v. UBS Warburg line of decisions.

Those calling for more certainty regarding triggering events also provided recommendations for addressing the scope of the preservation duty and the application of sanctions.  A suggestion to incorporate language that presumptively limits the number of custodians (10) and documents (by age) met resistance on the grounds that trying to apply a one-size-fits-all rule fails to acknowledge that the facts and circumstances of every case are different and so too are the litigants.  Similarly, recommendations to limit sanctions for evidence spoliation to situations where a litigant’s conduct is “intentional” or “willful” were met with a chilly reception by those favoring better adherence to the current Rules.

Conclusion

Time did not permit comprehensive discussion and analysis of every perspective, but the mini-conference highlighted the complexity surrounding preservation and sanctions issues and revealed some polarized viewpoints about how to solve those issues.  Perhaps one glimmer of consensus was the acknowledgement that “pre-litigation” obligations to preserve evidence before service of a complaint is often challenging for large organizations.  However, whether this and other issues should be addressed through better education, more stringent enforcement of existing rules, or by modifying the existing rules to include more “guideposts” remains unsettled.

What do you think?  Please respond to the poll, above right, to let us know whether you think amending the Federal Rules of Civil Procedure (FRCP) is necessary to address some of the preservation and sanctions issues discussed above.

To join the conversation and receive automatic updates when new information is posted to this blog, please subscribe to e-discovery 2.0.

Nelson: You were recently quoted in a Law Technology News (LTN) article written by Evan Koblentz as saying, “I don’t see a need to amend the rules” because these rules haven’t been around long enough to see what happens.  Isn’t almost five years long enough?

Judge Hedges: No.  For the simple reason that both attorneys and judges continue to need education on the 2006 amendments and, more particularly, they need to understand the technologies that create and store electronic information.  The amendments establish a framework within which attorneys and judges make daily decisions on discovery.  I have not seen any objective evidence that the framework is somehow failing and needs further amendment.

Nelson: You also said the “big problem” is that people don’t talk enough.  What did you mean?  Hasn’t the Sedona Cooperation Proclamation made a difference?

Judge Hedges: The centerpiece of the 2006 amendments (at least in my view) is Rule 26(f).  I think it is fair to say that the legal community’s response to 26(f) has been, to say the least, varied. Civil actions with large volumes of ESI that may be discoverable under Rule 26(b)(1) cry out for extensive 26(f) meet-and-confer discussions that may take a number of meetings and require the presence of party representatives from, for example, IT.  There is an element of trust required between adversary counsel (with the concurrence of the parties they represent) that may be difficult to establish – but some cooperation is necessary to make 26(f) work.  Overlay that reality with our adversary system and the duty of attorneys to zealously advocate on behalf of their clients and you can understand why cooperation isn’t always a top priority for some attorneys.

However, “transparency” in discussing ESI is essential, along with advocacy and the need to maintain appropriate confidentiality. That’s where the Sedona Conference Proclamation can make a big difference. Has the Proclamation done that? It’s too early to reach a conclusion on that question, but the Proclamation is often cited and, as education progresses in eDiscovery, I am confident that the Proclamation will be recognized as a means to realize the just, speedy, and inexpensive resolution of litigation, as articulated under Rule 1.

Nelson: You also mentioned that the Federal Rules Advisory Committee might be running afoul of the Rules Enabling Act.  Can you explain?

Judge Hedges: There is a distinction between “procedural” and “substantive” rules.  The Rules Enabling Act governs the adoption of the former.  Rule 502 of the Federal Rules of Evidence is an example of a substantive rule that was proposed by the Judicial Conference.  However, since Rule 502 is a rule dealing with substantive privilege and waiver issues, it had to be enacted into law through an Act of Congress.  I am concerned that proposals to further amend the Federal Rules of Civil Procedure may cross the line from procedural to substantive.  I am not prepared to suggest at this time, however, that anything I have seen has crossed the line.  Stay tuned.

Nelson: If you had to select one of the three options currently being considered (see page 264), which option would you select and why?

Judge Hedges: To start, I would not choose option 1, which presumes that the Rules can reach pre-litigation conduct consistent with the Rules Enabling Act.  My concern here is also that, in the area of electronic information, a too-specific rule risks “overnight” obsolescence, just as the Electronic Communications Privacy Act, enacted in 1986, is considered by a number of commentators to be, at best, obsolescent.  Note also that I did not use the word “stored” when I mentioned electronic information, as courts have already required that so-called ephemeral information be preserved.  Nor would I choose option 2.  Absent seeing more than the brief description of the category on page 264, it seems to me that option 2 is likely to do nothing more than be a restatement of the existing law on when the duty to preserve is “triggered.”

So, by default, I am forced to choose option 3.  I presume a rule would say something like, “sanctions may not be imposed on a party for loss of ESI (or “EI”) if that party acted reasonably in making preservation decisions.”  There are a number of problems here. First, in a jurisdiction which allows the imposition of at least some sanction for negligence, all the rule would likely do is be interpreted to foreclose “serious” sanctions. Isn’t that correct? Or is the rule intended to supersede existing variances in the law of sanctions?  At that point, does the rule become “substantive”?   Second, how will “reasonableness” be defined?  Reasonableness supposes the existence of a duty – in this case, a duty to preserve.  For example, is there a duty to preserve ephemeral data that a party knows is relevant?  We come back full circle to where we began.

Remember, Rule 37(f) (now 37(e)) was intended to provide some level of protection against the imposition of sanctions, just as the categories are intended to.  Right?  And five years later 37(e) remains defined variously to be a “safe harbor” or a “lighthouse” by some lawyers such as Jonathan Redgrave or an “uncharted minefield” by others like me.

Nelson: What about heightened pleading standards after the Iqbal and Twombly decisions?  Do these decisions have any relevance to electronic discovery and the topic at hand?

Judge Hedges: Let me begin by saying that I am no fan of Twombly or Iqbal. The decisions, however well intended, have led to undue cost and delay all too often.  Not only is motion to dismiss practice costly for parties, but it imposes great burdens on the United States Courts and, as often as not, leads to at least one other round of motion practice as plaintiffs are given leave to re-plead.  All the while, parties have preservation obligations to fulfill and, in the hope of saving expense, discovery is often stayed until a motion is “finally” decided.  I would like to see objective evidence of the delay and cost of this motion practice (and I expect that the Administrative Office of the United States has statistical evidence already).  I would also like to see objective evidence from defendants distinguishing between the cost of motion practice and later discovery costs.

Putting all that aside, and if I had to accept one option, I would choose to allow some discovery that is integrated to the motion practice.  First, even without the filing of a responsive pleading, there should be a 26(f) meet-and-confer to discuss, if nothing else, the nature and scope of preservation and the possibility of securing a Rule 502(d) order. Second, while I have serious concerns about “pre-answer discovery” for a number of reasons, I would have the parties make 26(a)(1) disclosures while a motion to dismiss is pending or leave to re-plead has been granted in order to address the likely “asymmetry of information” between a plaintiff and a moving defendant.  Once the disclosures are made, I would allow the plaintiff to secure some information identified in the disclosures to allow re-pleading and perhaps obviate the need for continued motion practice.

All of this would, of course, require active judicial management.  And one would hope that Congress, which seems so interested in conserving resources, would recognize the vital role of the United States Courts in securing justice for everyone and give adequate funding to the Courts.

In my last post I announced that discussions are taking place that could change the way preservation and sanctions issues are handled within the federal court system.  The next round of discussions about possible amendments to the Federal Rules of Civil Procedure (FRCP) is scheduled to take place on September 9th in Dallas, Texas as part of a “mini-conference” led by the Discovery Subcommittee – a committee appointed by the Advisory Committee on Civil Rules.  This post discusses three different rule amendment approaches that attendees have been asked to consider in order to help them prepare for the mini-conference.  A complete list of attendees, preparation materials, and questions the group will consider are included in the Advisory Committee’s June 29, 2011 memorandum to the participants.

The debate about whether or not rule amendments are even required is far from over.  A 452-page document located on the U.S. Courts’ website chronicles many of the meetings, notes, and submissions driving the current discussion.  Page 265 of the document contains a memorandum prepared by the Civil Rules Advisory Committee earlier this year, stating that:

“the Subcommittee has reached no conclusion on whether rule amendments would be a productive way of dealing with preservation/sanctions concerns, much less what amendment proposals would be useful.”

Despite concerns that amending the current rules now would amount to jumping the gun, there is an undeniable desire for more clarity around when the duty to preserve electronically stored information (ESI) is triggered, what must be preserved, and when the duty expires.  This momentum has resulted in the crafting of draft proposals that are likely to help frame the discussion on September 9th. The “proposals” are really draft approaches that have been broken down into three general categories described in the Civil Rules Advisory Committee’s memorandum, titled: “PRESERVATION/SANCTIONS ISSUES” (see page 263).  The Category 1 approach can best be described as providing a higher degree of specificity than the other approaches.  For example, the Category 1 approach provides a fairly detailed explanation of the duty to preserve evidence (Rule 26.1(a)) and details possible triggers (26.1(b)), the scope of the duty to preserve (26.1(c)), and sanctions (Rule 37).  Category 2 proposes a more general preservation rule, while Category 3 only addresses sanctions as a tool for influencing behavior.  The three categories are discussed in more detail below.

Category 1: Specific Rule

This draft includes many different exemplary lists, alternative approaches, and footnotes that highlight the fact that one of the key challenges with drafting a specific rule is trying to foresee all of the challenges that might lie in the road ahead.  For example, the draft rule provides a long list of events that could trigger the duty to preserve evidence, including everything from serving a pleading to taking “any other action” in anticipation of litigation.   The rule also provides a list of information types that are “presumptively excluded” from the preservation duty, such as deleted data on hard drives, temporary internet files, and physically damaged media.

The lists are helpful in that they provide guidance.  However, each list also includes a “catch-all” provision to address scenarios that might not be foreseeable.  The inclusion of catch-all provisions highlights the inherent challenge of providing more clarity and certainty without creating rules that are so inflexible that they are difficult to apply to unforeseen factual scenarios or technological developments.  Some might argue that trying to provide a laundry list of examples will make passage of new rules difficult because each item on the list will stir debate.  Others contend that the lists add little value because the catch-all provisions will still require litigators to pass the sniff test of “reasonableness.”

Despite the inherent challenges related to drafting rules with specificity, most practitioners would likely support the inclusion of lists or examples that provide at least some direction.  What is likely to be far more controversial with respect to Category 1 is the use of alternative language proposing fixed limits around custodians and litigation holds.  For example, one alternative would limit data preservation requirements to a fixed number of custodians and the duty to preserve evidence would similarly expire after a fixed number of years.  Bright line rules like these may be easier to understand, but they also tend to be controversial since they lack the flexibility necessary to fairly address every conceivable situation.

Category 2: General Rule

Like the Category 1 proposal, the Category 2 proposal uses lists and outlines several alternative approaches throughout the rule.  However, the Category 2 proposal fundamentally differs from Category 1 by outlining a more general approach.  For example, one of the alternatives essentially states that the duty to preserve evidence is triggered whenever a “reasonable person” would expect to be a party to an action.  Similarly, the ongoing duty to preserve information after the duty has been triggered would be evaluated based on what is described as a “reasonable period” under the circumstances.

The beauty of this more general approach lies in its simplicity and flexibility.  The idea is that evaluating conduct based on the “reasonableness” of a person’s actions is much easier than attempting to draft bright line legal guidelines that account for every possible factual scenario.  The flip side is that reasonable minds could differ and results could be inconsistent if there are no bright line rules.  What this means in the context of the federal rule discussion is that one judge might find a party’s conduct with respect to data preservation efforts reasonable, while another judge might issue sanctions based on the same set of facts.  In large part, it is this lack of certainty and guidance in the current rules that sparked the current debate in the first place.

Category 3: Sanctions-Based Rule

Unlike the first two categories, the Category 3 approach focuses only on sanctions and would act like more of a “back-end” rule.  In other words, the rule would not contain any specific directives about preservation, but it would provide direction in the areas of when and how sanctions might be applied.

Despite the draconian image a “sanctions” based rule might conjure up, the Category 3 rule may seem surprisingly lenient to some.  For example, absent extraordinary circumstances, the court would be prohibited from imposing any of the sanctions listed in Rule 37(b)(2) or from giving an adverse-inference instruction unless:

“the party’s failure to preserve discoverable information was willful or in bad faith and caused [substantial] prejudice in the litigation.”

The sanctions based approach would almost certainly have an impact on how parties handle upstream preservation related issues.  However, the key ingredients that will impact what kind of behavior this rule drives are the severity of the threatened sanction as well as the applicable standard.  For example, a party facing severe sanctions for conduct that is either negligent, willful or in bad faith is likely to take their preservation obligations seriously.  On the other hand, if the realm of possible sanctions is trivial, parties are less likely to take their preservation related obligations seriously.

Conclusion

The three rule approaches represent very early attempts at framing possible approaches to amending the FRCP.  If the Discovery Subcommittee chooses to recommend rule amendments following the September 9th mini-conference in Dallas, the proposed language is likely to be closer to final form and easier to assess than the current proposals.  I will continue to monitor the rule making discussion and provide commentary in future posts.  Stay tuned for my next post where former US Magistrate Judge Ron Hedges explains why he thinks the rule changes are unnecessary and why the current proposals might run afoul of the Rules Enabling Act.

The Committee, comprised of the most talented experts in the 7th Circuit, as well as experts in relevant fields of technology, promulgated “Principles Relating to the Discovery of Electronically Stored Information” (“Principles”) and a Proposed Standing Order by which participating judges could implement the Principles in the Pilot Program’s test cases.  Practicing lawyers wrote the Principles under the guidance of federal judges in Chicago, with the end result being a consensus from experts in the field of eDiscovery rather than a prescriptive approach dictated by the courts.  The Committee now has 80 members, including members from all 7 federal districts in the 7th Circuit and around the country, and is chaired by Chief Judge Holderman and Magistrate Judge Nolan of the Northern District of Illinois. The Principles provide a checklist of important considerations for the initial meet and confer conference, as well as even-handed rules regarding preserving and producing electronically stored information (ESI) that provide more granularity to the Federal Rules of Civil Procedure.

The 7th Circuit has been well-received, and evangelists are jumping on board in other Circuits, including the 9th Circuit.  Art Gollwitzer, a member of the 7th Circuit eDiscovery Pilot Program Committee, practices patent law, was key in the formation of the Principles notably the Preservation Principle 2.04, and now heads the National Outreach Committee for the 7th Circuit Program.  In a recent case, Joao Control & Monitoring Systems of California, LLC v. ACTI Corp., et al., Case No. SA CV10-1909-DOC, in the Central District of California, Art was pleasantly surprised to see language that he helped write in a draft ESI order handed out by the court to the parties for their consideration at the initial status conference.  “I was very happy to see the exact language that our committee drafted after many hours of discussion in the summer of 2009 in the court’s proposed order,” Art explained.  “We worked hard to reduce the cost and burden of electronic discovery and to prevent ESI discovery from turning into a game of ‘gotcha’.”

The goal of the National Outreach Committee is to spread the word about the 7th Circuit’s ESI Program and its benefits.  “We envision spreading the word through articles, speeches, and ‘grass-roots’ or word-of-mouth efforts,” says Gollwitzer. To that end, liaisons in each Circuit or even each district can talk to judges and encourage colleagues to propose that courts adopt the Committee’s principles in Rule 26(f) orders on a case-by-case basis.  “We also can describe the program and its principles at local bar associations and Inns of Court,” he explains.  “Finally, we can volunteer for local rules committees or comment on ESI proposals for local rules.”

With each jurisdiction having its own local rules and each legal community having its own flavor, the exercise of bringing all stakeholders into the process to contribute to the Principles is unprecedented.  Whether each Circuit starts their own Pilot Programs, or initially adopts the 7th Circuit’s Principles and then modifies as necessary, remains to be seen.  Either way, results from the 7th Circuit have been positive thus far, generating supporters nationally.  The hope is that courts and practitioners will start with these Principles in order to avoid a patchwork of ESI rules across the country.

The general consensus of the participating judges in Phase I of the Pilot Program was that the Principles were having a positive effect both on counsel’s cooperation with opposing counsel, and on counsel’s knowledge of procedures to be followed when addressing electronic discovery issues. The judges felt that the involvement of eDiscovery liaisons required by Principle 2.02 contributed to a more efficient and cost effective discovery process. Many of the participating lawyers reported little impact on their cases, presumably mostly because of the limited 6-month duration of Phase I. Those lawyers who did see an effect from the application of the Principles in their cases overwhelmingly reported that the effect was positive in terms of promoting fairness, fostering more amicable dispute resolution, and facilitating their advocacy on behalf of their clients. The Committee intends to present its Final Report on the 2-year Phase II evaluation at the 7th Circuit Bar Association Meeting in May 2012.

While most attorneys are following the guidance of Principle 2.01 (a) and (c), Duty to Meet and Confer on Discovery and to Identify Disputes for Early Resolution, it is barely the majority.  And curiously, a significant minority of attorneys acknowledged they had not familiarized themselves with their client’s information systems or had early discussions with their opponents about ESI preservation issues even though they were applicable in the case.

What does this suggest? For one thing, the landscape is improving – but there is still a long way to go.  Why would even a single attorney with a case in the Pilot Program ignore relevant ESI issues? One of the major problems with the vagueness of the Federal Rules was a lack of clear-cut guidance. Now, even though there is a Standing Order in the case providing guidance and Principle 2.01 (d) outlining sanctions that could be imposed for failure to comply, some lawyers still do not.

Every Circuit should be forming a Committee and bringing practitioners, judges and experts together to weigh in on these important ESI issues.  Fortunately, there is a successful model available with hard data.  The 7th Circuit’s Principles and Standing Order are a good place to start.