Reforming Discovery: Discussion Forum

Reforming Discovery - Discussion Forum

 

Note: To ask a new question or comment on an existing question, click the ( Download Button ) icon.

 

QUESTION 1: Is it fair or reasonable to allow attorneys who don't have a basic mastery of IT concepts (and WON'T take the time to learn) to assert the Federal eDiscovery system? Download Button

J.Collins The VAST majority of attorneys don't understand technology, so how could they possibly offer a reasoned opinion about the fairness of the system?
Anon. If attorneys all understood technology to the degree Alex Buck does, the system would possibly work very well.
J.Holderman We appreciate your concern about attorneys who do not have "a basic mastery of IT concepts." To be effective in 21st century litigation, an attorney must have a basic understanding of the issues involved in the pretrial discovery process as well as the issues involved as to the merits of the litigation.  If any attorney won't take the time to learn what they need to know to understand the discovery process, those attorneys will be doing a disservice to their clients as well as themselves, and will not be in a position to evaluate properly the case and the discovery process.  This is the main reason the Principles call for eduction and, where counsel has not yet been educated on the subject, recommneded the use of liaisons.


QUESTION 2: What insights can you provide to school districts or other local governmental or state bodies who have closed schools or facilities, and laid off employees, and are losing tax revenue, as to how they may best plan to meet the burdens imposed by e-discovery, especially where the courts presiding over their cases may not require cooperation or proportionality by counsel and parties suing, such entities that are only losing revenue for the foreseeable future? Download Button

J.Holderman We are hoping in the not-to-distant future that all trial judges, both state and federal, who have to address these issues will become sensitive to the need for good faith mutual cooperation and evaluation of proportionality regarding discovery in all litigation.  If the judge in your case is not, feel free to give that judge the Principles and website information of the Seventh Circuit Electronic Discovery Pilot Program.  We intend to be updating the materials periodically to allow counsel and judges to stay abreast of the law in this area.  In the meantime, advising your client and client's employees regarding appropriate organized record preparation and maintenance may be the best way to try to minimize the cost and burden if and when litigation comes.


QUESTION 3: Will we get copies of the slide show? Download Button

A.Bucy Copies of the Reforming Discovery Webinar can be accessed and downloaded through the following link: Presentation PowerPoint

 

 

QUESTION 4: Is ESI = electronically saved information? Download Button

T.Lidbury ESI is the acronym for the phrase Electronically Stored Information introduced by the 2006 amendments to the federal rules.

 

 

QUESTION 5: How feasible is it to have a liaison in smaller 1983 cases? Download Button

T.Lidbury A "small" case can be complex and even involve significant discovery.  Duties concerning discovery cannot be suspended for "small" cases but the concept of proportionality must be applied in them.  Remember that a liaison can be anyone who has made the effort to understand the technology involved in the dispute at hand.  It even can be the lawyer or a tech-savvy client.  The Pirnciples only ask that you understand the issue that you are bringing to the judge.

 

 

QUESTION 6: Where or how do I get a copy of the Principles? Download Button

A.Bucy The 7th Circuit Pilot Program Principles can be accessed through the following link: Program Principles

 

 

QUESTION 7: Are there any particular types of cases in which judges are implementing the pilot program? Are certain judges more active in implementing the program in their cases than others? Download Button

M.Rowland The Program is open to all civil cases.
M.Rowland Thirteen judges in the Northern District of Illinois are participating in the Pilot Program.  We expect that number to increase as we enter Phase II. 

 

 

QUESTION 8: In the pilot program, who enters the standing order and can parties alter the suggested standing order contained in the packet? Download Button

T.Lidbury The trial judge enters a standing order in individual cases which that judge has selected for the Pilot Program.  Some judges have modified the Principles in particular orders, or all orders. 

 

 

QUESTION 9: Can you give some examples of sanctionable conduct in the pilot program? Download Button

T.Lidbury The pilot program does not emphasize sanctions.  It emphasizes cooperation.  But there is substantial guidance in the existing case law concerning sanctionable misteps, including failing to take reasonable and timely steps to preserve relevant ESI, misleading the Court about ESI issues, and failing to timely locate and produce relavnt ESI.

 

 

QUESTION 10: Where can I obtain a copy of the Sedona Conference Cooperation Proclamation? Download Button

A.Bucy The Sedona Proclamation can be accessed through the Sedona Conference's website: www.thesedonaconference.org

 

 

QUESTION 11: Is the Pilot Program controlling on cases not specifically identified as Pilot Program cases? Download Button

J.Holderman No, the Pilot Program Principles only are controlling in cases where a standing order applying the Principles has been entered.  We hope in the future that judges and attorneys will apply the Pilot Program's Principles in a greater number of cases to minimize the cost and burden of electronic discovery. 

 

 

QUESTION 12: Will Judges in the Northern District ask the parties before them to follow these principles? Download Button

J.Holderman As of today, thirteen of the Northern District of Illinois judges have entered standing orders in cases that require the Pilot Program Principles to be followed.  We hope and expect that more and more judges in the Northern District of Illinois and beyond the Northern District will enter orders applying the Pilot Program Principles. 

 

 

QUESTION 13: Can we rely on these principles now in the Northern District even though they are not yet implemented as part of the standing order? Download Button

J.Holderman No, the Pilot Program Principles only are controlling in cases where a standing order applying the Principles has been entered.  
 M.Rowland We hope in the future that judges and attorneys will apply the Pilot Program's Principles in a greater number of cases to minimize the cost and burden of electronic discovery. 

 

 

QUESTION 14: How does a case get assigned to the pilot program, and, if a case is assigned to the pilot program, are the requirements obligatory? Download Button

J.Holderman Each judge presiding in a case decides whether to enter the standing order requiring counsel and the parties to adhere to the Pilot Program Principles.  In those cases where the standing order has been entered, the requirements are obligatory. 

 

 

QUESTION 15: How do the requirements apply to cases that are not formally assigned to the program? Download Button

M.Rowland The Pilot Program Principles do no apply in cases that are not part of the Pilot Program.  However, litigants are free to request the Court to enter the case into the Pilot Program.  Also, parties are free to consult the Principles for guidance in addressing ESI disputes.

 

 

QUESTION 16: Will these Principles provide some sort of sanctions against the sort of attorneys who wish to bankrupt their opponents by multiplying abusive discovery requests? Download Button

A.Buck The Principles do not impose new sanctions or cost-shifting standards, however, the Principles encourage the communication and cooperation necessary to avoid such abusive discovery practices in the first instance.  The Principles offer guidance for parties to raise abusive discovery practices with the court.

 

 

QUESTION 17: Under the pilot program, must a paid expert be retained to be the discovery liaison, or can that person be one of the lawyers on the case or an employee of the company? Download Button

A.Buck The Principles allow for any qualified individual(s) to act as the discovery liaison.  The liaison may be different depending on the case, issues at stake and size of discovery.  The liaison can be an in-house attorney or IT professional, outside counsel or a hired expert.  The Principles require the designation of such a liaison for purposes of promoting true knowledge exchange between the parties.

 

 

QUESTION 18: How were the members of the pilot program committee selected? Is the pilot program committee open to new members? Download Button

J.Holderman People become members of the Pilot Program Committee by expressing the desire to participate.  The Committee is open to new members.  Contact the chambers of Judge Nan Nolan to become a member.

 

 

QUESTION 19: Would principles provide that a prevailing party may recover some/all of the costs of ESI? Download Button

N.Nolan No. The Principles do not provide for the costs to be recoverable.  Matters of costs are addressed by Federal Rule of Civil Procedure 54(d).

 

 

QUESTION 20: Have you seen evidence of plaintiffs' attorneys trying to use the pilot program terms to increase the costs of discovery on the defense to force a settlement? Download Button

M.Rowland No, we have not. 

 

 

QUESTION 21: How does the requesting party navigate through copyright and patent protections licensed by the responding party for the organization and maintenance of their ESI to permit access to the ESI produced by the responding party? Download Button

A.Buck The responding party has no obligation to give the requesting party access to their systems.  The responding party can offer to perform queries and produce output from that system.  If no solution, other than access to the licensed system exists, then the parties should seek guidance from the court on how to proceed. 
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