The results of the first phase of a closely watched federal court pilot program on electronic discovery show that having a set of fair-play rules at the outset of a case helps quell pretrial brawls between parties.
The goal of the program, launched in May 2009 and spearheaded by James Holderman, chief judge of the Northern District of Illinois, was to find ways to reduce the massive costs and burdens of electronic discovery. Chairing the program is Magistrate Judge Jan Nolan, also of the Northern District of Illinois.
The first-phase of the 7th Circuit’s pilot program indicated that when judges and attorneys had a set of specific principles to guide electronic discovery, it improved the process — or, at least, didn’t make it worse.
“It was very encouraging,” said Holderman.
The first phase of the program involved 13 district court judges overseeing 93 civil cases and 285 attorneys between October 2009 and March 2010. The program required the judges and attorneys to follow a set of principles, drafted by the program’s committee members, during electronic discovery. Those principles called for:
• Parties to recognize that cooperation with opposing counsel does not compromise zealous advocacy.
• Parties to resolve electronic discovery disputes early, without court intervention.
• Parties to make electronic discovery demands proportionate to the particulars of the case.
• Parties to meet before an initial status conference with the judge to discuss discovery.
• When a dispute arose, each party to select a liaison attorney to deal with discovery and to attend hearings.
• Parties to refrain from making overly broad preservation requests.
• Parties to take reasonable steps to preserve electronically stored information.
• Judges and attorneys to know the civil procedure rules pertaining to electronically stored information.
The participating judges and attorneys were sent a survey asking them to evaluate the program. All of the 13 judges and 133 of the attorneys responded.
About 90% of the judges thought that the principles increased or greatly increased the attorneys’ familiarity with their clients’ technology relating to electronic discovery. All the judges agreed or strongly agreed that the use of discovery liaisons increased the efficiency of the discovery process.
About 43% of the attorneys said that the principles increased or greatly increased the fairness of the discovery process. About 55% said the principles had no effect on the fairness, and fewer than 3% said it made the process less fair. About 61% said that the principles had no effect on their ability to resolve discovery disputes without court involvement.
Asked whether the principles affected their ability to zealously represent their clients, 74% said the principles had no effect while 22% said that the principles increased their ability to zealously represent their clients. About 4% indicated a negative effect.
As an attorney who typically represents clients requesting electronic discovery, Marni Willenson said she was comfortable with the goals of the pilot program.
“I don’t fear these principles,” said Willenson, a solo practitioner in Chicago and a member of the pilot program committee. Most important to Willenson was that the principles promoted cooperation among opposing counsel and early attention to the electronic discovery issues in a case.
Assisting in the design and administration of the survey were the Federal Judicial Center and the Institute for the Advancement of the American Legal System at the University of Denver.
The program committee is continuing to review the survey feedback and will start the second phase, which may include modifications to the principles. Holderman said he hopes that judges and attorneys outside the 7th Circuit will participate in the second phase.
Among the 285 attorneys participating in the program, about 33% identified themselves as representing parties requesting electronic data in cases, and about 35% said they represented parties who typically were asked to produce the data. About 25% represented both requesters and producers. About 7% were neither requesters nor producers.
Leigh Jones can be contacted at [email protected].
