A PowerPoint deck about the Seventh Circuit's Ediscovery Pilot Program

1. Seventh Circuit’s Ediscovery
Pilot Program
Steven M. Puiszis

2. Seventh Circuit’s Ediscovery Pilot
Program
Developed principles relating to the discovery of
electronically stored information (ESI) that were
codified into a standing order.
Principles serve as supplemental procedural
guidelines in selected cases.
Thirteen judges will participate in selected cases
during Phase 1 of the program through May 1,
2010.

3. Seventh Circuit’s Ediscovery Pilot
Program
The Institute for the Advancement of the American
Legal System developing questionnaires to assess
the principles.
Questionnaires to be completed by participating
judges and lawyers.
Results will be presented to the Seventh Circuit at
its annual meeting in May 2010.
Principles will be reviewed, modified as needed
and applied during Phase II, June 2010 to May
2011.

4. Principle (1.01)- Purpose of the Program
To assist in the administration of Fed. R. Civ. P 1
and secure a “just speedy and inexpensive
determination” of every civil case.
To promote the early resolution of ediscovery
disputes without court intervention.

5. Principle 1.02 - Cooperation
An attorney’s zealous representation is not
compromised by cooperating in discovery.
Failure of counsel or a party to cooperate “in
facilitating and reasonably limiting discovery
requests and responses” contributes “to the risk of
sanctions.”
Practical tip: read Fed. R. Civ. P. 26(g) and Mancia v.
Mayflower Textile Servs. Co., 253 F.R.D. 354
(D.Md. 2008)

6. Principle 1.03 – Proportionality
Fed. R. Civ. P. 26(b)(2)(C)’s proportionality
standard should be applied in formulating a
discovery plan.
ESI production requests and responses “should be
reasonably targeted, clear, and as specific as
possible.”
Tip: Remember the proportionality standard applies to
all discovery, even to “accessible” sources of ESI.

7. Rule 26(b)(2)(C)
Court “must limit the frequency or extent of discovery” if:
It is unreasonably cumulative, duplicative or can be obtained
from a less expensive, less burdensome or more convenient
source;
The party had ample opportunity to obtain the information by
discovery; or
Its burden or expense outweighs its benefit when considering
the amount in controversy, the needs of the case, the parties
resources, the importance of the issues at stake and the
importance of the requested discovery in resolving the issues.

8. Principle 2.01 – Meet and Confer
Requires parties to meet prior to the initial status
conference and discuss the application ediscovery
rules and these Principles to their case. Issues to
discuss include:
Identification of relevant/discoverable ESI;
Scope of ESI to be preserved;
Potential for conducting discovery in phases or
stages as a method for reducing costs;
Procedures for handling inadvertent disclosure of
privilege material under F.R.E. 502.

9. Principle 2.01- Meet and Confer
Requires unresolved ESI issues be presented to the
court at the initial status or scheduling conference
or as soon thereafter as possible.
If a party fails to participate or cooperate in good
faith or is impeding these principles, the court may
require additional party discussions before
discovery begins or impose sanctions if appropriate.
ESI disputes will be resolved more efficiently if
attorneys know how the client’s data is stored and
retrieved.

10. Practical tips for limiting ediscovery
costs and burdens.
If you have filed a potentially dispositive motion,
consider bringing a motion to stay discovery
pursuant to Rule 26(c) .
See Practical Ediscovery blog post from February
09 addressing the Ellington Credit Fund, Ltd. v.
Select Portfolio Servs., Inc., 2009 WL 274483
(S.D.N.Y. Feb. 3, 2009) and Stone v. Lockheed
Martin Corp., 2009 WL 267688 (D. Colo. Feb. 2,
2009) decisions which discuss this type of motion.

11. Practical tips for limiting ediscovery
costs and burdens
See Principles 2.04 and 2.05 (discussed below) for
other topics to discuss with opposing counsel at
your initial conference including limiting the amount
of accessible ESI to be produced by date range,
custodians, file types, de-duplication, keyword
searching and the application of Rule 26(b)(2)(C)
proportionality.

12. Practical tips for limiting ediscovery
costs and burdens.
Obtain a settlement demand – this will provide
the court with a rough idea of the amount in
controversy for purposes of applying Rule
26(b)(2)(C)’s proportionality standard. See
Mancia v. Mayflower Textile Servs. Co.

13. Principle 2.02 – Ediscovery Liaisons
Should an ESI dispute occur, parties are required to
designate ediscovery liaisons.
Liaison can be an in-house or outside counsel, third
party consultant or company employee.

14. Principle 2.02 – Ediscovery Liaisons
Liaison must be: (a) prepared to participate in
dispute resolution; (b) knowledgeable about the
party’s ediscovery efforts; (c) have access to those
familiar with the party’s systems and answer
relevant questions; and (d) have access to those
who are knowledgeable about the technical
aspects of ediscovery.

15. Principle 2.03 - Preservation Requests
and Orders
Vague and overbroad preservation requests are disfavored.
Vague and overbroad preservation orders should not be
sought or entered.
Tip: See Frey v. Gainey Transp. Servs. Inc., 2006 WL 2443787
(N.D. Ga. Aug. 22, 2006) (“Such an extensive request for
materials certainly would lend itself to an effort … to
sandbag a defendant in the event that any of those materials
were not preserved. …so it is difficult to allow a potential
plaintiff to make an end run around the Federal Rules of Civil
Procedure by filing a preemptive ‘spoliation’ letter.”).

16. Principle 2.03 - Preservation Requests
and Orders
To the extent preservation is sought through a
pre-suit letter, it should include “specific and
useful information” such as: (1) the names of
parties; (2) factual background of the potential
claim, (3) the putative legal theories, (4) names
of potential witnesses and those having relevant
evidence, (5) the relevant time frame and (6)
other information that can assist in determining
what information to preserve.

17. Duty to preserve ESI
When litigation is “reasonably anticipated.”
General concern over litigation or theoretical threat
of a suit does not trigger duty to preserve. See
Realnetworks, Inc. v. DVD Copy Control Ass’n, Inc.,
2009 WL 1258970 (N.D.Cal. May 5, 2009);
Goodman v. Praxair Servs. Inc., 632 F.Supp. 2d 494
(D.Md. 2009).
See See Guideline 4 from Sedona Conference’s
“Commentary on Litigation Holds, The Trigger & The
Process” for a series of factors to consider when
assessing if/when a duty to preserve was triggered.

18. Duty to preserve ESI
Pre-suit letter that merely identifies a dispute and
“expresses an invitation to discuss or otherwise
negotiate” or inquires if the situation can be
“resolved without litigation and media exposure”
does not trigger a duty.
See Goodman, 632 F.Supp. at 511, citing Cache
LaPoudre Feeds LLC v. Land O’Lakes, Inc. 244
F.R.D. 614, 622 (D.Colo. 2007) and Practical
Ediscovery blog posts discussing these decisions.
If in doubt, advise client to preserve and promptly
issue a litigation hold letter.

19. Principle 2.03 - Preservation
Requests and Orders
Principles do not require either the sending of a
preservation request or a response thereto.
If you send a response, take care not to assume a
duty for your client or disclose privileged information
or work product.
Attorney litigation hold letters are privileged. See Muro
v. Target Corp., 250 FRD 360 (N.D. Ill. 2007).

20. Principle 2.04(a) - Scope of Preservation
Parties and their counsel “are responsible for taking
reasonable and proportionate steps to preserve”
relevant ESI “within its possession custody or
control.”
Determining what steps are reasonable and
proportionate is a fact specific inquiry that varies
from case to case.
Parties should address preservation issues at the
outset and should continue to address them as the
case progresses.

21. Principle 2.04(b) – Discovery about
preservation efforts.
May be appropriate but can cause unnecessary
expense and delay and inappropriately implicate
attorney work-product and privileged matters.
Before such discovery occurs the parties must
confer about: (1) the need for such discovery and its
relevance to issues likely to arise; and (2) the
suitability of alternative means to obtain that
information.
Does not exempt a deponent from answering
questions about preservation and collection of ESI.

22. Principle 2.04(c) – Preservation
discussion at initial meet and confer.
Parties should be prepared to discuss “targeted discovery”
that each anticipates requesting.
Parties should also be prepared to discuss “reasonably
foreseeable preservation issues that relate directly” to the
ESI the other party is seeking.
Query: How can this be accomplished without knowing the
client’s information system and how the client preserves its
data and for how long?
Tip: Discuss whether there is any duty to preserve
inaccessible ESI. See Rule 2.04(d) and be prepared to
explain why a source is inaccessible. Consider whether to
bring a “technologist” to the meeting.

23. Principle 2.04(d) – Scope of Preservation
Categories of ESI that are not generally discoverable in most cases:
(1) Deleted, slack, fragmented or unallocated data;
(2) Random access memory (RAM) or ephemeral data;
(3) Temporary internet files, history, cache, cookies;
(4) Metadata fields that are frequently updated;
(5) Backup data substantially duplicative of data that is more
accessible;
(6) Other forms of ESI which requires extraordinary measures to
preserve and not utilized in the ordinary course of business.

24. Principle 2.04(e) – Dispute over scope
of preservation efforts.
Requires the parties to meet and fully explain their reasons
for believing that additional efforts are or are not
“reasonable and proportionate, pursuant to Rule
26(b)(2)(C).”
If the parties are unable to resolve a preservation issue,
they should raise it promptly with the court.
Tip: If you or your client appear to be taking an unreasonable
position and are failing to cooperate, you will likely lose this
battle, could be sanctioned under Principle 2.01(d) and it
may color the court’s view of your client throughout the
course of the litigation.

25. Principle 2.05 – Parameters of ESI
Search and Production
At the Rule 26(f) conference or promptly thereafter, parties
“shall discuss” potential methodologies to:
Eliminate duplicative ESI (horizontal or vertical de-
duplication);
Filter data by file type, date ranges, custodians, senders,
search terms;
Use of keyword searching, concept searching or other
advanced culling technologies.
Note: take care when contemplating the use of keyword
searching for privileged documents. See Victor Stanley v.
Creative Pipe, Inc., 250 F.R.D. 251, 261 (D.Md. 2008).

26. Principle 2.06 – Production Format
Requires a good faith effort to agree on the format of
ESI production at the initial Rule 26(f) conference.
If unable to agree, the issue should be raised
promptly with the Court.
ESI stored in a database can be produced by
querying the database for information resulting in a
report or a reasonably useable and exportable
electronic file.

27. Principle 2.06 – Production Format
If ESI and other tangible or hard copy documents
in a party’s possession are maintained in a format
that is not text searchable, it does not need to be
made text searchable.
If ESI is maintained in a text searchable format by
a party, the Advisory Committee Notes to Rule 34
explain that it cannot be produced in a different
format that eliminates or significantly degrades this
feature.

28. 2.06 - Production Format (Costs)
Requesting party is generally responsible for the
incremental cost of creating its copy of the
requested information.
Discussion of cost sharing encouraged when the
addition of optical character recognition (OCR) or
other upgrades of paper documents or non-text-
searchable electronic information is contemplated by
the parties.

29. Native Format Imaged Format
Can be altered. Can’t be altered.
Can’t be redacted or bates Can be bates numbered
stamped (in theory). and redacted.
Contains metadata and No metadata unless “load
embedded data. file” added to image.
May require specialized More costly and takes
software to view if created longer to produce.
in unique or proprietary Not searchable unless
format. “OCR” added.

30. Principle 3.01- Educational
It is “expected” that in any “litigation matter” all
counsel will become familiar with:
The federal rules on ediscovery;
The 2006 Advisory Committee Report concerning
the federal ediscovery amendments at:
http://www.uscourts.gov/rules/EDiscovery_w_Notes.
pdf; and
The Seventh Circuit’s Pilot Program Ediscovery
Principles.

31. Ediscovery resources/assistance
The Sedona Conference® publications on ESI:
http://www.thesedonaconference.org/publications/
Kroll Ontrack: http://www.krollontrack.com/resources/
Hinshaw’s ediscovery response team headed up by
Alan Lipton;
Hinshaw’s Litigation Support department headed up
by Tom Proctor;
Hinshaw’s blog – Practical Ediscovery found at:
http://www.practicalediscovery.com.