A Seventh Circuit Pilot Program to Reduce the E-Discovery Burden

http://ow.ly/81BRZ

An article by David J. Kessler, Emily Johnston and David Schwartz published on the fulbright.com website.

This article discusses the 7th Circuit's pilot program regarding eDiscovery, which has entered a 2nd phase.

The pilot program seeks to offer a more established framework to provide guidance to litigants regarding eDiscovery preservation obligations, than what presently exists under the Federal Rules of Civil Procedure.

The article states, "The program’s formal Principles consist of six primary elements: (1) cooperation and proportionality; (2) early focus on e-discovery; (3) a designated e-discovery liaison for each party; (4) identification of the scope of preservation; (5) the provision of a framework for effective negotiation; and (6)
the provision of an incentive for judicial education on e-discovery matters."

In addition, the article further points out, "While promoting cooperation, proportionality, early communication
and education as the primary tools to rein in electronic discovery does not distinguish the Seventh Circuit program from other guidance and protocols, it goes one step farther by establishing a framework to negotiate the issues, particularly with respect to preservation. Each side has a baseline from which to work. This doesn’t mean the baseline will be the rule in every case, but both parties know it’s a default that should be altered only where that’s warranted by particular facts."

The article further states that certain types of data do not need to be preserved in a typical matter.  If a party intends to seek preservation of those specific types of data, they must notify the opposition early in the case proceedings.  The specific Six types of data that requires a special preservation request are said to be as follows, "These six categories are:

1. “Deleted,” “slack,” “fragmented” or “unallocated” data on hard drives.
2. Random access memory (RAM) or other ephemeral data.
3. On-line access data, such as temporary internet files, history, cache and cookies.
4. Data in frequently and automatically updated metadata fields, such as last-opened dates.
5. Backup data that is substantially duplicative of data that is more accessible elsewhere.
6. Other forms of ESI whose preservation requires extraordinary affirmative measures not utilized in the
ordinary course of business.

The presumption is that in most cases, the preservation of these items is not reasonable or proportional, because the likelihood of their containing materially relevant information is slim."