Last month, the Seventh Circuit’s Electronic Discovery Pilot Program Committee released its report on phase one of its Electronic Discovery Pilot Program. Initiated as a “multi-year, multi-phase process to develop, implement, evaluate, and improve pretrial litigation procedures that would provide fairness and justice to all parties while seeking to reduce the cost and burden of electronic discovery consistent with Rule 1 of the Federal Rules of Civil Procedure”, the first phase of the program ended on May 1, 2010, after a seven month period in which the committee’s Principles Relating to the Discovery of Electronically Stored Information were tested in practice. …
Too lengthy to summarize, the full report is available here.
I had my fingers crossed for something better than the electronic discovery report released last year by the American College of Trial Lawyers, which, if adopted, would do little more than encourage frivolous discovery objections.
The Seventh Circuit report is far better; I’ve posted on Scribd a copy of their proposed standing electronic discovery order.
I am concerned, though, by the heavy reliance upon having attorneys meet-and-confer to discuss issues relating to electronically-stored information.
Sometimes attorneys aren’t so candid when it comes to ESI, like in Grider v. Keystone Health:
As stated in Finding of Fact 26, on March 1, 2004 Attorney Summers sent a letter to the court attaching a series of Declarations which affirmatively represented to the court that plaintiffs’ allegations of bundling and downcoding lacked any factual basis, and that those claims were “without merit”. Thereafter, defendant Keystone, through its counsel, Attorney Summers, refused to produce the underlying documents and data compilations which supported the Declarations on a number of frequently changing bases. Initially, Attorney Summers withheld the underlying documents and data compilations because they allegedly constituted lay opinion. Next, Attorney Summers withheld the information on the basis that it was expert opinion and immune from discovery. Finally, Attorney Summers asserted that the underlying information was privileged material pursuant to either the attorney-client privilege or the attorney work product doctrine.
As noted by my colleague Senior United States District Judge J. William Ditter, Jr., “It is not good faith for a lawyer to frustrate discovery requests…with successive objections like a magician pulling another and another and then still another rabbit out of a hat.” Massachusetts School of Law at Andover, Inc. v. American Bar Association, 914 F.Supp. 1172, 1177 (E.D.Pa. 1996). * * *
The most egregious instance of late production involves Keystone’s late production of claims data. Keystone claimed for years that it was unable to provide claims data. During the same time that Keystone and its counsel were feigning an inability to produce claims data (which it owned according to the ASA agreement with Synertech), Keystone was using claims data for its own self-serving purposes (i.e., the Declarations sent to the court on March 1, 2005). * * *
This case is about claims processing. To deny plaintiffs the data which Keystone owns is equivalent to denying plaintiffs their day in court. Without this data it will be more difficult for plaintiffs to prove their claims. I conclude that this is exactly what defendant Keystone hoped to accomplish by thwarting discovery in this case.
The District Court sanctioned them, but sanction is more the exception than the rule, and the Third Circuit eventually reversed the sanction anyway, even though it found the conduct sanctionable.
Fact is, if defense counsel doesn’t have enough of an incentive to be candid in discussing the availability of ESI — like if they face no real threat of sanction or a spoliation ruling — then odds are they won’t be.
If the Seventh Circuit wants parties to successfully meet-and-confer, they should require the parties to submit to each other affidavits discussing the available sources of ESI to the best of the party’s information, knowledge and belief. That will mean a lot more, and will be a lot more useful in the litigation, than a phone call or letter from an attorney whose primary goal is to conceal evidence.