Litigation Support

While watching the Sedona Conference webinar on the Cooperation Proclamation today, it struck me that I had never talked in Ride the Lightning about the Seventh Circuit's Electronic Discovery Pilot Program. This program, whose first phase is October 1, 2009-May 1, 2010 was developed in response to the obvious need for reform of the civil pretrial discovery process.

If it was bad before, and it was, it is much worse now with the advent of e-discovery.

The august group which developed the program composed a set of Principles Relating to the Discovery of Electronically Stored Information. These principals are enumerated in the link given above. The principles are really an extension of the Cooperation Proclamation and involve early case assessment, proportionality in formulating an e-discovery plan, the participation of e-discovery liaisons, specificity of preservation requests and orders, the proportionate scope of preservation, identification of electronically stored information, production format and education.

Also included is a model Standing Order Relating to the Discovery of Electronically Stored Information.

All in all, some very nice work. Of course, they are trying to defy the natural order of litigation today- the "take no prisoners" approach that seems so deeply rooted in our (less than civil) civil justice system. But it is a call to action backed up by the court's inherent authority to punish those who disobey the order. I applaud it and hope it will bear some fruit.

Some of the judges in the circuit bravely volunteered to walk this gangplank and will apply the principles to selected cases, which will then be evaluated using objective and subjective measuring tools. The resulting data will be presented at the Annual Meeting of the Seventh Circuit Bar Association and Judicial Conference of the Seventh Circuit, to be held in Chicago on May 2-4, 2010. After that, the Pilot Program will move on to Phase Two (yet to be precisely defined), which will be conducted from June 2010-May 2011.

So can lawyers, famous for eating their young, be retrained to be cooperative? I'm not betting the mortgage money.

E-mail: snelson@senseient.com   Phone: 703-359-0700

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