Kellner Say Cooperation Now The Law in 7th Circuit

The Seventh Circuit Court of Appeals (which  covers Illinois, Indiana, and Wisconsin and all  the federal district and  appellate courts therein, including of course Chicago) has begun an Electronic Discovery Pilot Program. It was, according to the report itself “Developed as a result of (a) continuing comments by business leaders and practicing attorneys, regarding the need for reform of the civil justice pretrial discovery process in the United States,(b) the release of the March 11, 2009 Final Report on the Joint Project of the American College of Trial Lawyers Task Force on Discovery (“Task Force”) and the Institute for the Advancement of the American Legal System at the University of Denver (“IAALS”),1 and (c) The Sedona Conference Cooperation Proclamation.   The stated intent of the Pilot Program is to “take action to reduce the rising burden and cost of discovery in litigation in the United States brought on primarily by the use of electronically stored information (“ESI”) in today’s electronic world.”

The Seventh Circuit Electronic Discovery Committee , which developed the program, is a group of trial judges and lawyers, including in-house counsel, private practitioners, government attorneys, academics, and litigation expert consultants headquartered primarily in the Seventh Circuit. Committee members met for the first time in May 2009 and consulted with Ken Withers, the Managing Director of The Sedona Conference. Over the next four months various E-Discovery Committee members working in sub-committee groups continued to work on developing the Pilot Program and the result was the Seventh Circuit Electronic

Discovery Pilot Program’s Principles Relating to the Discovery of Electronically Stored Information (“Principles”). Those Principles will be implemented and evaluated during Phase One from October 1, 2009 through May 1, 2010.

What does this mean in practical terms? I asked that question of Chuck Kellner, the Vice President of Consulting for eDiscovery at Anacomp’s CaseLogistix and he replied: “The Sedona Principles on Cooperation and more, including references to Early Case Assessment, are about to become the law of the land in the Seventh Circuit”

Chuck went on to explain: “Basically what it says is that attorneys will learn about ESI, will come up to speed on their clients’ electronic discovery matters, will assess their cases, and will cooperate effectively and will negotiate scope of electronic discovery, and they will be monitored while doing it.   Later phases of the program will turn the screws tighter on requirements of cooperation, disclosure, and proportionality.  The meat of this starts on page 9 and the principles themselves on page 13.  The back half is a proposed standing order, which the judges can use in every case filed in every federal court in the Seventh Circuit. “

“I think what it will mean for us is increasing emphasis on reading the data early.  The EDRM as a way to describe various litigation support tasks might still be useful, but the EDRM as a linear workflow is under stress, as we predicted, in favor of piling up more concurrent tasks atop each other, and to “the left”.  Everything that we have been discussing and what we are now doing in ECA about mining metrics, about finding the significant documents quickly, and about estimating the size and cost and time of the review, these are all quickly becoming legal requirements, not just good strategy. “

Echoing statements we have heard all year from federal judges, Chuck also said. “ The tone of the judges there was that they were no longer bearing attorneys’ unpreparedness for meet-and-confer, and were prepared to start a rigorous program of enforcement.  To place this more broadly than the Seventh Circuit, the theme echoes what we’ve seen in case decisions in the last few months.”

So if you haven’t read The Cooperation Proclamation, this is a good time to do so. Especially if you practice in the Seventh Circuit.

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