23 Feb 2012

E-Discovery Court Pilot Programs: E-Discovery Templates that Legal Teams Should Utilize

Posted in: Thursday E-Discovery Case Law No Comments

By Mike Hamilton, J.D.

Most legal teams are aware of e-discovery risks. But when it comes to implementing real-world, specific strategies and techniques to streamline e-discovery processes, understanding where to start can be daunting. The real dilemma faced is how to effectively address and formulate protocols to resolve the gaps in the process. What questions should be asked and discussed with opposing counsel at meet and confer? How does one efficiently and defensible identify all potentially relevant electronically stored information (ESI) related to the matter? What parameters, such as date ranges and file types, are relevant and proportional to the matter at hand?

Courts in a few jurisdictions are beginning to recognize this common e-discovery dilemma and are taking proactive measures to help guide attorneys through the maze of e-discovery complexities, leading to the ultimate goal of reducing litigation costs. Through pilot programs and court mandated protocols, the 7th U.S. Circuit Court of Appeals, the Western District of Pennsylvania and the Southern District of New York are pioneering and equipping legal teams with e-discovery frameworks and templates to leverage in future litigation.

Here is quick rundown of the key provisions and principles of each program:

7th U.S. Circuit Court of Appeals’ Pilot Program

Championed by judges and written mostly by attorneys, this program is based around two primary principles: (1) Cooperation – lawyers must “cooperate in facilitating and reasonably limiting discovery requests and responses.” (2) Discovery proportionality – Discovery requests should be “reasonably targeted, clear, and as specific as practicable.” These foundational principles support the main goal of the program, to proactively identify potential e-discovery problems before they arise and create solutions to “secure the just, speedy, and inexpensive determination of every civil case.”

Here are a few of the program’s specific e-discovery principles:

  • Select an e-discovery liaison/e-discovery project manager. At the beginning of a case, each litigant must appoint an e-discovery liaison who is educated about their party’s own e-discovery efforts (e.g. access to IT contacts with knowledge of their IT infrastructure and internal systems and processes).
  • Identify ESI. Filtering techniques, such as keyword searching, de-duplication and data faceting, and foreseeable preservation issues, such as how to handle RAM, updated metadata and backup data, should be discussed at the meet and confer  so e-discovery preservation and collection parameters can be clearly and narrowly defined.
  • Clearly communicate when creating and responding to preservation requests. Before issuing preservation requests, specific information like the background or reasoning behind the requests must be included.  When responding to a request, the responding party should identify: (1) what data it will preserve, (2) arguments concerning the request, and (3) additional preservation concerns.

With approximately 36 judges now on board, hundreds of cases have been tried under these guidelines set forth by the 7th Circuit’s program.

Southern District of New York Pilot Project for Case Management Techniques for Complex Cases

The Southern District’s goal in creating this project was to “focus on complex cases {to} improve the quality of judicial case management.” While broader than the 7th Circuit’s program, the Southern District pilot project requires parties to make numerous e-discovery representations, including:

  • Parties must be “sufficiently knowledgeable in matters relating to their clients,” meaning they should be able to competently discuss IT issues relating to e-discovery.
  • In meet and confer, a proportionality assessment should take place. An “Initial Pre-Trial Conference Checklist” is included in the program, which sets forth a number of issues when assessing proportionality concerns.
  • Discussions should include a transparent data preservation plan that addresses common e-discovery issues, such details as methods used to identify potentially relevant data and where/how potentially relevant ESI is preserved.

Adopted last November, the project is scheduled to stay in effect through May 2013.

Western District of Pennsylvania’s Special Master Protocol

To help quickly solve e-discovery disputes, the Western District of Pennsylvania adopted a “Special Master’s” protocol. At the outset of a case, litigants must select a special master from a list of attorneys with expertise in mediation and technology.  The special master is responsible for holding hearings and issuing orders concerning e-discovery issues, which may be appealed to the judge. On a frequent basis, cases get bogged down by e-discovery disputes between parties (see our recent write-up on Pippins v. KPMG). Special masters can provide the necessary skill and expertise to help expedite the e-discovery process by quickly identifying practical and fair solutions.

Conclusion

Per the words of Judge David Waxse, in the recent webcast “2012 E-Discovery Case Law Forecast: Hindsight is 20/20, “the court is not looking for a perfect e-discovery process, its only looking for a reasonable one.” These court pilot programs can serve as helpful guides for litigants seeking a “reasonable approach” for addressing the e-discovery process.

 

Mike Hamilton, J.D. is a Sr. E-Discovery Analyst at Exterro, Inc., focusing on educating Exterro customers, prospects and industry experts on how  to solve e-discovery issues proactively with technology. His e-discovery knowledge, legal acumen and practical experience give him a valuable perspective on bridging the gap between IT and legal teams. You can find him on Google+, Twitter and Linkedin.


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