In July 2008, The Sedona Conference® released the Cooperation Proclamation, urging the bar and bench to abandon adversarial conduct in pre-trial discovery of ESI leading to the imposition of unnecessary costs and burdens that threaten the goals of Federal Rule of Civil Procedure 1 – the “just, speedy, and inexpensive determination of every action,” – and adjudication of disputes on the merits.  Since then, the Cooperation Proclamation has been endorsed by 92 federal and state judges, and cited in 12 judicial opinions.

On October 1, 2009, the Seventh Circuit put legs on the Cooperation Proclamation by implementing an Electronic Discovery Pilot Program, the first phase of which is scheduled to run until May 1, 2010.  The committee that developed the Pilot consisted of trial judges, in-house counsel, private practitioners, government attorneys, academics, service providers, and expert consultants, who worked together to develop a series of Principles related to ESI to be adopted through a proposed Standing Order issued in selected cases in the Seventh Circuit.  “The goal of the Principles is to incentivize early and informal exchange on commonly encountered issues relating to evidence preservation and discovery….  They do so by providing guidance on preservation and discovery issues that commonly arise and by requiring that such issues be discussed and resolved early either by agreement, if possible, or by promptly raising them with the court.”  The Principles will be evaluated and refined in May 2010, and a second phase of the Pilot will proceed from June 2010 until May 2011.  In May 2011, a final set of Principles will be issued.

The current Principles regarding discovery of ESI include:

• An attorney’s zealous representation of a client is not compromised by conducting discovery on a cooperative manner
• The proportionality standard of Fed. R. Civ. P. 26(b)(2)(C) should be applied in each case when formulating a discovery plan.
• Requests for production of ESI and related responses should be reasonably targeted, clear, and as specific as practicable.
• Before meeting with opposing counsel, attorneys for each party should review how their client’s data is stored and retrieved.
• If a party or its counsel fails to cooperate and participate in the meet and confer in good faith, the court may impose sanctions.
• In the event of a dispute involving the preservation or production of ESI, each party shall designate one or more knowledgeable individuals to act as e-discovery liaison(s) for purposes of meeting, conferring, and attending court hearings. 
• Vague and overly broad preservation requests are disfavored.  Vague and overly broad preservation orders should neither be sought nor entered.  Preservation letters or orders should be reasonable in scope and should take into account the factors set forth in Fed. R. Civ. P. 26(b)(2)(C).
• Every party and its counsel are responsible for taking reasonable and proportionate steps to preserve relevant and discoverable ESI within its possession, custody, or control.  The parties and their counsel should address preservation issues at the outset of the case, and should continue to address them as the case progresses.  Discovery regarding preservation efforts should only be undertaken when there is no other means available for obtaining that information.
• The Principles deem certain categories of ESI as presumptively non-discoverable, including deleted, slack, fragmented, or unallocated data on hard drives; random access memory or other ephemeral data; on-line access data, such as temporary internet files, history, cache, and cookies; data in metadata fields that are frequently automatically updated, such as last-accessed dates; backup data that is substantially duplicative of data that is more accessible elsewhere; and other forms of ESI whose preservation requires extraordinary affirmative measures that are not employed in the ordinary course of business.  If a party intends to request the preservation or production of any of these, that intention should be discussed at the meet and confer, or as soon as practicable thereafter.
• At the meet and confer, or as soon thereafter as practicable, counsel or the parties shall discuss methodologies for identifying ESI for production, including de-duplication, filtering, culling, and search strategies.
• At the meet and confer, counsel or the parties should make a good faith effort to agree on the format(s) for the production of ESI.  ESI and hard-copy documents that are not text-searchable need not be made text-searchable.
• Generally, the requesting party is responsible for the incremental cost of creating its copy of the requested ESI.  Counsel or the parties are encourage to discuss cost-sharing for OCR or other upgrades of non-text-searchable electronic images that may be contemplated by the parties.
• Judges, attorneys, and parties to litigation should consult The Sedona Conference® publications relating to e-discovery, and additional materials available on websites of the courts and other organizations providing information regarding the discovery of ESI.

The Seventh Circuit Electronic Discovery Pilot Program offers a useful model for other circuits (and states) to consider in implementing the Cooperation Proclamation.  Stay tuned to see how successful the Principles are in practice, and what benefits will be reported when the Pilot is evaluated next May.

The views expressed above are solely those of the author and should not be attributed to her firm or its clients.

About Maura R. Grossman

More ...