The 7th Circuit Pilot Program and How it Could Affect E-Discovery Practice

In 2009, the Seventh Circuit’s Electronic Discovery Pilot Program was created by a committee of judges, attorneys, academics and consultants, with a goal of improving e-discovery-related procedures and reducing their cost. Now in the second of three projected phases, the program is likely to change the practice nation-wide, according to the authors. Practitioners and executives are advised to understand its basics.

The committee recognized that generic demands for all ESI, issued at the outset of a case, were a basic part of the problem, setting the stage for an adversarial proceeding from then on. They formulated eleven principles intended to promote early informal exchange regarding how e-discovery was to be handled. The principles address such issues as preservation; cooperation and proportionality; early case assessment; and the important of judges, attorneys and parties becoming educated on e-discovery issues.

One principle details the categories of electronically stored information, like deleted, fragmented and temporary files, that generally should not be discoverable. Another addresses how data can be made as useful as possible to the opposing party, while making the requesting party responsible for the costs. After the principles were applied in 93 cases, a survey of judges and attorneys who participated found overwhelming approval by judges and mixed responses for attorneys.

The authors suggest that in anticipation of the program’s likely effect, companies analyze their own IT systems; designate an e-discovery liaison in case of litigation; and carefully frame a retention policy.