Seventh Circuit’s Electronic Discovery Pilot Program

Recently, the Seventh Circuit announced its Electronic Discovery Pilot Program. The program was developed in response to continuing comments by the business community and practicing attorneys about the need to reform the civil pretrial discovery process. It is an attempt to reduce the cost and burden of ediscovery in litigation. What makes the Seventh Circuit’s pilot program unique is that its results will be reviewed and analyzed during the program’s phases.

A series of Principles Relating to the Discovery of Electronically Stored Information (“ESI”) were developed and codified in a standing order. These principles are intended to serve as supplemental procedural ediscovery guidelines for the parties in selected cases. Individual district court, magistrate, and bankruptcy judges in the Seventh Circuit have agreed to adopt the principles and implement them in selected cases during Phase I of the program, which runs through May 1, 2010.

Kenneth J. Winters, the Managing Director of the Sedona Conference®, and former Colorado Supreme Court Judge Rebecca Kourlis, the Executive Director of the Institute for Advancement of the American Legal System (“IAALS”) at the University of Denver, assisted in the development and review of these principles.

IAALS is developing questionnaires to assess the efficacy of the principles. The questionnaires will be completed by the judges and lawyers participating in Phase I of the program. The results of the IAALS’ questionnaires will be presented to the Seventh Circuit at its annual meeting in May, 2010. At that time, the program’s ediscovery principles will be reviewed and refined as needed. Phase II of the program is scheduled to proceed from June, 2010 through May, 2011. It is contemplated that in May, 2011, Phase II findings will be presented and the Seventh Circuit’s final ediscovery principles announced.

Among other things, the principles require in the event of a dispute during the meet and confer process, the appointment of an ediscovery liaison who should be prepared to participate in ediscovery dispute resolution. These principles also recognize that that Rule 26(b)(2)(C)’s proportionality principles should be applied when formulating a discovery plan; provide that sanctions can be imposed for the failure to cooperate and participate in good faith in the meet and confer process; identify categories of ESI, which are generally not discoverable in most cases; and provides that if a party intends to request the preservation or production of these categories of ESI, that such a request be discussed at the parties’ initial meet and confer session or as soon thereafter as practicable.

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Email Routes and Locations

When we provide training on ediscovery, one of the issues we address is the various places where emails can be found, and the routes which they can take to get to those repositories. Because a picture is worth a thousand words, we worked with the head of our firm’s IT department to develop a PowerPoint slide that visually depicts this information which we now use in our training sessions.

We have attached our slide below, and if you click on the image, it will enlarge for your ease of reference. Admittedly, not every email system will have all of the various features shown on our slide, and there can be other repositories in some systems that we did not include, but our slide does provide a fairly comprehensive overview of the various “nooks and crannies” where emails can be found.

While it is not as complex as a map of New Orleans, our slide shows that the world wide web is not exactly an information superhighway. Rather, it’s more like a medieval European city where you can easily get lost if you can’t read the signs or know where you are going. Hopefully our slide will prevent you from getting lost, and will help you find what you are looking for.

[Click image to enlarge]

If you want to use this slide for any reason, just drop Steve or Evan a note.

Information required to produce electronic data as kept in the usual course of business

Pass & Seymour, Inc. v. Hubbell, Inc., 2008 WL 4240490 (N.D.N.Y., September 12, 2008)

This is another case dealing with lawyers who are practicing the ancient art of steganography through steganographic discovery responses. Hubbell involved the production of 405,367 pages of documents in an electronic format that were “loosely organized” in 202 unlabeled files with no corresponding index. After the defendant objected to the production, plaintiff asserted that the electronic documents were produced as they were kept in the “usual course of business.”

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Claim of attorney work product will not support disorganized electronic data dump

Securities and Exchange Comm’n v. Collins & Aikman Corp., 2009 WL 94311 (S.D.N.Y. Jan. 13, 2008)

Did you know that the art and science of hiding messages or information within other forms of data is called is called steganography. Wikipedia describes it as “a form of security through obscurity.” In today’s digital world, it includes the concealment of electronic information within other computer files.

Many lawyers practice steganography without knowing its name. Frequently they attempt to bury critical or key documents in a voluminous document production in response to an opponent’s discovery requests. The potential for this type of “gamesmanship” has grown with the advent of ediscovery. Collins addressed and rejected several arguments commonly used to justify this type of steganographic discovery response. The Collins decision was written by District Judge Shira Scheindlin who authored the Zubulake decisions which addressed litigation-hold requirements. So on several different levels, the decision merits your attention.

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