LawPulse

A pilot program centered in Chicago is developing a set of procedures designed to improve the efficiency of electronic discovery in federal cases.

In May 2009, former Chief U.S. District Judge James F. Holderman formed the Seventh Circuit Electronic Discovery Pilot Program Committee to create pretrial e-discovery procedures designed to improve a process that is often less efficient and more contentions than it should be. Five years later, the pilot program is in its third phase and the committee has grown to include well over 100 attorneys.

E-discovery liaisons

Holderman has stated that an impetus for the pilot program was a 2009 report on discovery and the future of the civil justice system that resulted from a joint project of the American College of Trial Lawyers Task Force on Discovery and the Institute for the Advancement of the American Legal System (IAALS). The report contained broad-ranging ideas about how to improve the legal system, proposing 29 core principles that include changes to case management, pleadings, and discovery, among other topics (the report is available at http://iaals.du.edu/images/wygwam/documents/publications/ACTL-IAALS_Final_Report_rev_8-4-10.pdf). Several of the report's principles address the expense and inherent complexities of electronic discovery.

At the heart of the Seventh Circuit's Electronic Discovery Pilot Program is its own set of principles - the "Principles Relating to the Discovery of Electronically Stored Information" (http://www.discoverypilot.com/sites/default/files/Principles8_10.pdf). The principles were drafted by the pilot program's committee and designed to encourage cooperation and proportionality in e-discovery, as well as the early resolution of e-discovery disputes.

The pilot program's principles state, for example, that "[a]n attorney's zealous representation of a client is not compromised by conducting discovery in a cooperative manner." They also create e-discovery liaisons, representatives appointed by each party in a case who understand how e-discovery works and can meet with their counterparts to resolve disputes and otherwise move the process forward. The principles have been revised in response to lessons learned as the program has advanced through its phases.

In phase one, which took place between October 2009 and March 2010, the principles were implemented in 93 civil cases in the U.S. District Court for the Northern District of Illinois. After surveying participating judges and counsel, the committee concluded that the principles were encouraging cooperation between opposing lawyers and that the e-discovery liaisons were proving helpful.

Phase two expansion

Phase two of the program was conducted between May 2010 and May 2012. It expanded the pilot program, adding an additional 27 participating judges - including many from outside the Northern District - and applied the principles to nearly 300 cases.

According to the committee, the data collected during the first two phases demonstrated that the principles were making e-discovery operate more smoothly without compromising attorneys' ability to represent their clients. A sizeable minority of attorneys surveyed found that the principles increased fairness in the e-discovery process - 43 percent in phase one and 40 percent in phase two. Judges were more enthusiastic, with 70-plus percent reporting improved cooperation between parties in both phases.

A central feature of phase three, which began in October 2012, is a free mediation program, which is described in the committee's phase-three interim report:

"[D]uring the first part of Phase Three, the Mediation Subcommittee created a program to provide free mediation of e-discovery disputes when parties lack the resources to resolve the issues themselves. A panel of experienced e-discovery practitioners volunteer to mediate e-discovery disputes at no cost to the parties. Panel members have received training in mediation techniques….

"The Committee believes that its E-Mediation Program and the other Phase Three endeavors…move the pretrial litigation process in the United States toward a more cooperative cost-effective culture for the benefit of all."

The pilot program website, which contains the committee's reports and an array of other information, is at www.discoverypilot.com. Members of the committee include Chicago lawyers Timothy J. Chorvat and P. Shawn Wood representing the ISBA Civil Practice and Procedure Section Council.

- Matthew Hector