Courts to seek better grip on e-discovery

October 29, 2009

Chicago Daily Law Bulletin September 29, 2009

Volume: 155 Issue: 190

by John Flynn Rooney Law Bulletin staff writer

The federal trial courts in the 7th Circuit are launching a pilot program Thursday aimed at easing the cost and difficulties associated with electronic discovery in civil cases.

The pilot project emanated from concerns about the mounting costs of electronic discovery, U.S. Magistrate Judge Nan R. Nolan, chair of the committee overseeing the pilot program, said Tuesday.

Those concerns were laid out in detail this spring when the Irvine, California-based American College of Trial Lawyers Task Force on Discovery and the Institute for the Advancement of the American Legal System at the University of Denver issued a report on their joint project regarding the pretrial discovery process in the United States.

The report included survey responses from more than 1,300 fellows of the college and showed that the nation’s civil justice system is buckling under the weight of discovery requirements.

The report said many members of the bar believe that electronic discovery rules have made the process more cumbersome and drag out litigation.

Provisions in the Rules of Civil Procedure relating to electronic discovery went into effect on Dec. 1, 2006.

The report said more than 87 percent of the lawyers surveyed maintained that electronic discovery drives up the costs of litigation.

Respondents frequently described electronic discovery as a “morass,” according to the report.

Chief U.S. District Judge James F. Holderman said Tuesday that, especially after the report was issued, he and Nolan “decided we needed to do something to help the legal system cope with the volume of discovery.”

Holderman, along with the 10 U.S. magistrate judges sitting in Chicago, will participate in the pilot project. Other district court, magistrate and bankruptcy judges serving in the 7th Circuit, which covers Illinois, Indiana and Wisconsin, are expected to join the program, Holderman said.

Each of the judges who volunteer for the program will work with lawyers to identify up to 10 cases pending before the jurist to determine whether the cost of electronic discovery can be reduced by participation in the program, Nolan said.

Michael D. Monico, president of the 7th Circuit Bar Association and an Electronic Discovery Committee member, welcomed the effort.

“We think it will be one of the most important programs of its kind in the country to help reduce the costs and difficulties of e-discovery,” said Monico, a principal of Monico, Pavich & Spevack.

The 40-member Electronic Discovery Committee includes in-house counsel, private practitioners, government lawyers, academics and litigation expert consultants, most with headquarters in the 7th Circuit.

The committee has met three times since May, most recently about two weeks ago. The committee also formed three subcommittees: Preservation, chaired by James S. Montana Jr., a shareholder with Vedder, Price P.C.; Early Case Assessment, co-chaired by Karen Caraher Quirk, a Winston & Strawn LLP partner, and Thomas A. Lidbury, a Mayer, Brown LLP partner; and Education, co-chaired by Mary M. Rowland, a Hughes, Socol, Piers, Resnick & Dym Ltd. partner, and Kathryn A. Kelly, an assistant U.S. attorney in Chicago assigned to the office’s Civil Division.

Earlier this month, the committee members adopted principles for use during the pilot project’s first phase running from Oct. 1. through May 1, 2010.

Those principles address the purpose of electronic discovery, the need for cooperation during the process and maintaining proportionality in the discovery of electronically stored information, along with other factors related to the project.

“I think the principles are significant not only in what they say but in how they were drafted,” Quirk said Tuesday, referring to the diverse makeup of the committee.

In the first phase of the program, the Institute for Advancement of the American Legal System will focus on testing the effectiveness of the principles, Nolan said.

The results of that phase will be reported at the 7th Circuit’s annual conference in Chicago in May 2010, according to Nolan.

The second phase of the pilot program is set to run from June 2010 through May 2011.

“We’re going to take the results of the survey and make adjustments, if necessary, in the principles and basically do it again with the new concepts,” Holderman said.

More information about the project, including the statement of purpose and preparation of principles, along with a proposed standing order, can be found on the district court’s Web site.