I had the opportunity yesterday to participate in the Seventh Circuit Electronic Discovery Committee Workshop on Computer-Assisted Review. The all-afternoon event was held in the impressive Everett M. Dirksen U.S. Courthouse, Ceremonial Courtroom, shown below.
The event opened with a keynote address by Jason R. Baron. I’m going to find a way to bring to this keynote speech to you very soon. For that reason, I won’t attempt to describe it now, except to say it was a big hit, and set the right tone for the whole event. I want to share the whole speech, word for word, because I have noticed that what Jason is thinking and talking about today, usually becomes what the rest of us focus on tomorrow. Such is the proper role of a thought leader.
The entire afternoon CLE on predictive coding was videotaped, thanks to underwriting from Symantec Clearwell, and when it is available I’ll also share the link to it here or on Twitter.
I was honored to participate in a mock hearing on the acceptability of predictive coding that followed Jason’s opening speech. I played the role of the judge and got to sit on the elevated bench with gavel. It was somewhat intimidating with U.S. Magistrate Judge Nan Nolan and other dignitaries looking on in the historic courtroom. In case you were wondering, I did not talk to myself before the ruling.
As to how I ruled on the well-argued cross motions for and against the use of advanced computer assisted review technology, that will have to wait for another blog, or the video, as I’m still in Chicago now watching a sunrise and only have time for this short note. Let’s just say my ruling may not be what you would expect and I left both sides unhappy. Can’t say the same for the beautiful sunrises in downtown Chicago that leave everyone smiling.
The mock hearing was unique in many respects, including the quality of argument and expert testimony by my fellow panelists. Participating with me in the mock panel playing the roles of counsel and experts were:
Martin T. Tully, Partner and Co-Chair, Electronic Discovery & Evidence Practice, Katten Muchin LLP
Sean M. Byrne, eDiscovery Solutions Director, Axiom
Herbert L. Roitblat, Ph.D., Chief Scientist and Chief Technology Officer, OrcaTec
Karl A. Schieneman, Founder and Host, ESI Bytes podcast and Founder, ReviewLess
The mock hearing presentation was also unusual in that it showed the pre-hearing preparation efforts of counsel and the parties. We watched as attorneys pretended to speak with their clients about predictive coding, and their experts. They dialogued, they argued, and they succeeded in narrowing the issues down for a ruling. I heard later that this method worked well to get a few important points across, although it was difficult for Martin and Karl who had to pretend that they were Luddites, well, at least anti-predictive-coding.
After the mock panel, the event concluded with a roundtable of experts discussing predictive coding, which we referred to as Computer Assisted Review or Technology Assisted Review. I was again honored to serve on the panel along with:
Maura R. Grossman, Counsel, Wachtell, Lipton, Rosen & Katz
Tomas M. Thompson, Senior Associate and Member of Electronic Discovery Readiness & Response Group, DLA Piper LLP (US) (Moderator)
Jeffrey C. Sharer, Partner and Member of Electronic Discovery Task Force, Sidley Austin LLP
Matthew Nelson, eDiscovery Counsel, Symantec/Clearwell
David D. Lewis, Ph.D., Co-Founder, TREC Legal Track and Founder, David, D. Lewis Consulting
Lisa Rosen, President, Rosen Technology Resources
Seventh Circuit Electronic Discovery Pilot Program Issues Final Report on Phase Two
Phase Two of the Seventh Circuit’s Electronic Discovery Pilot Program ended in May and the Final Report on that phase was issued yesterday. See:Phase Two Report. For more on information on the 7th Circuit Pilot program see their website at www.DiscoveryPilot.com. I think they have made fantastic progress and now serve as a role model for the whole country.
The Seventh Circuit Pilot Program is based on a statement of Principles. They are so important in my opinion that I reproduce them here in full.
7th CIRCUIT ELECTRONIC DISCOVERY COMMITTEE
PRINCIPLES RELATING TO THE DISCOVERY OF
ELECTRONICALLY STORED INFORMATION
Principle 1.01 (Purpose)
The purpose of these Principles is to assist courts in the administration of Federal Rule of Civil Procedure 1, to secure the just, speedy, and inexpensive determination of every civil case, and to promote, whenever possible, the early resolution of disputes regarding the discovery of electronically stored information (“ESI”) without Court intervention. Understanding of the feasibility, reasonableness, costs, and benefits of various aspects of electronic discovery will inevitably evolve as judges, attorneys and parties to litigation gain more experience with ESI and as technology advances.
Principle 1.02 (Cooperation)
An attorney’s zealous representation of a client is not compromised by conducting discovery in a cooperative manner. The failure of counsel or the parties to litigation to cooperate in facilitating and reasonably limiting discovery requests and responses raises litigation costs and contributes to the risk of sanctions.
Principle 1.03 (Discovery Proportionality)
The proportionality standard set forth in Fed. R. Civ. P. 26(b)(2)(C) should be applied in each case when formulating a discovery plan. To further the application of the proportionality standard in discovery, requests for production of ESI and related responses should be reasonably targeted, clear, and as specific as practicable.
Early Case Assessment Principles
Principle 2.01 (Duty to Meet and Confer on Discovery and to Identify Disputes for Early
(a) Prior to the initial status conference with the Court, counsel shall meet and discuss the application of the discovery process set forth in the Federal Rules of Civil Procedure and these Principles to their specific case. Among the issues to be discussed are:
(1) the identification of relevant and discoverable ESI and documents, including methods for identifying an initial subset of sources of ESI
and documents that are most likely to contain the relevant and discoverable information as well as methodologies for culling the
relevant and discoverable ESI and documents from that initial subset (see Principle 2.05);
(2) the scope of discoverable ESI and documents to be preserved by the parties;
(3) the formats for preservation and production of ESI and documents;
(4) the potential for conducting discovery in phases or stages as a method for reducing costs and burden; and
(5) the potential need for a protective order and any procedures to which the parties might agree for handling inadvertent production of privileged information and other privilege waiver issues pursuant to Rule 502(d)
or (e) of the Federal Rules of Evidence.
(b) Disputes regarding ESI that counsel for the parties are unable to resolve shall be presented to the Court at the initial status conference, Fed. R. Civ. P. Rule 16(b) Scheduling Conference, or as soon as possible thereafter.
(c) The attorneys for each party shall review and understand how their client’s data is stored and retrieved before the meet and confer discussions in order to determine what issues must be addressed during the meet and confer discussions.
(d) If the Court determines that any counsel or party in a case has failed to cooperate and participate in good faith in the meet and confer process or is impeding the purpose of these Principles, the Court may require additional discussions prior to the commencement of
discovery, and may impose sanctions, if appropriate.
Principle 2.02 (E-Discovery Liaison(s))
In most cases, the meet and confer process will be aided by participation of an ediscovery liaison(s) as defined in this Principle. In the event of a dispute concerning the preservation or production of ESI, each party shall designate an individual(s) to act as ediscovery liaison(s) for purposes of meeting, conferring, and attending court hearings on the subject. Regardless of whether the e-discovery liaison(s) is an attorney (in-house or outside
counsel), a third party consultant, or an employee of the party, the e-discovery liaison(s) must:
(a) be prepared to participate in e-discovery dispute resolution;
(b) be knowledgeable about the party’s e-discovery efforts;
(c) be, or have reasonable access to those who are, familiar with the party’s electronic systems and capabilities in order to explain those systems and answer relevant questions; and
(d) be, or have reasonable access to those who are, knowledgeable about the technical aspects of e-discovery, including electronic document storage, organization, and format issues, and relevant information retrieval technology, including search methodology
Principle 2.03 (Preservation Requests and Orders)
(a) Appropriate preservation requests and preservation orders further the goals of these Principles. Vague and overly broad preservation requests do not further the goals of these Principles and are therefore disfavored. Vague and overly broad preservation orders should not be sought or entered. The information sought to be preserved through the use of a preservation letter request or order should be reasonable in scope and mindful of the factors set forth in Rule 26(b)(2)(C).
(b) To the extent counsel or a party requests preservation of ESI through the use of a preservation letter, such requests should attempt to ensure the preservation of relevant and discoverable information and to facilitate cooperation between requesting and receiving counsel and parties by transmitting specific and useful information. Examples of such specific and useful information include, but are not limited to:
(1) names of the parties;
(2) factual background of the potential legal claim(s) and identification of potential cause(s) of action;
(3) names of potential witnesses and other people reasonably anticipated to have relevant evidence;
(4) relevant time period; and
(5 ) other information that may assist the responding party in assessing what information to preserve.
(c) If the recipient of a preservation request chooses to respond, that response should provide the requesting counsel or party with useful information regarding the preservation efforts undertaken by the responding party. Examples of such useful and specific information include,
but are not limited to, information that:
(1) identifies what information the responding party is willing to preserve and the steps being taken in response to the preservation letter;
(2) identifies any disagreement(s) with the request to preserve; and
(3) identifies any further preservation issues that were not raised.
(d) Nothing in these Principles shall be construed as requiring the sending of a preservation request or requiring the sending of a response to such a request.
Principle 2.04 (Scope of Preservation)
(a) Every party to litigation and its counsel are responsible for taking reasonable and proportionate steps to preserve relevant and discoverable ESI within its possession, custody or control. Determining which steps are reasonable and proportionate in particular litigation is a fact specific inquiry that will vary from case to case. The parties and counsel should address preservation issues at the outset of a case, and should continue to address them as the case progresses and their understanding of the issues and the facts improves.
(b) Discovery concerning the preservation and collection efforts of another party may be appropriate but, if used unadvisedly, can also contribute to the unnecessary expense and delay and may inappropriately implicate work product and attorney-client privileged matter. Accordingly, prior to initiating such discovery a party shall confer with the party from whom the information is sought concerning: (i) the specific need for such discovery, including its relevance to issues likely to arise in the litigation; and (ii) the suitability of alternative means for obtaining the information. Nothing herein exempts deponents on merits issues from answering questions concerning the preservation and collection of their documents, ESI, and
(c) The parties and counsel should come to the meet and confer conference prepared to discuss the claims and defenses in the case including specific issues, time frame, potential damages, and targeted discovery that each anticipates requesting. In addition, the parties and counsel should be prepared to discuss reasonably foreseeable preservation issues that relate directly to the information that the other party is seeking. The parties and counsel need not raise every conceivable issue that may arise concerning their preservation efforts; however, the identification of any such preservation issues should be specific.
(d) The following categories of ESI generally are not discoverable in most cases, and if any party intends to request the preservation or production of these categories, then that intention should be discussed at the meet and confer or as soon thereafter as practicable:
(1) “deleted,” “slack,” “fragmented,” or “unallocated” data on hard drives;
(2) random access memory (RAM) or other ephemeral data;
(3) on-line access data such as temporary internet files, history, cache, cookies, etc.;
(4) data in metadata fields that are frequently updated automatically, such as last-opened dates;
(5) backup data that is substantially duplicative of data that is more accessible elsewhere; and
(6) other forms of ESI whose preservation requires extraordinary affirmative measures that are not utilized in the ordinary course of business.
(e) If there is a dispute concerning the scope of a party’s preservation efforts, the parties or their counsel must meet and confer 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, then the issue should be raised promptly with the Court.
Principle 2.05 (Identification of Electronically Stored Information)
(a) At the Rule 26(f) conference or as soon thereafter as possible, counsel or the parties shall discuss potential methodologies for identifying ESI for production.
(b) Topics for discussion may include, but are not limited to, any plans to:
(1) eliminate duplicative ESI and whether such elimination will occur only within each particular custodian’s data set or whether it will occur
across all custodians;
(2) filter data based on file type, date ranges, sender, receiver, custodian, search terms, or other similar parameters; and
(3) use keyword searching, mathematical or thesaurus-based topic or concept
clustering, or other advanced culling technologies.
Principle 2.06 (Production Format)
(a) At the Rule 26(f) conference, counsel and the parties should make a good faith
effort to agree on the format(s) for production of ESI (whether native or some other reasonably
usable form). If counsel or the parties are unable to resolve a production format issue, then the
issue should be raised promptly with the Court.
(b) The parties should confer on whether ESI stored in a database or a database management system can be produced by querying the database for discoverable information, resulting in a report or a reasonably usable and exportable electronic file for review by the
requesting counsel or party.
(c) ESI and other tangible or hard copy documents that are not text-searchable need not be made text-searchable.
(d) Generally, the requesting party is responsible for the incremental cost of creating its copy of requested information. Counsel or the parties are encouraged to discuss cost sharing for optical character recognition (OCR) or other upgrades of paper documents or non-textsearchable electronic images that may be contemplated by each party.
Principle 3.01 (Judicial Expectations of Counsel)
Because discovery of ESI is being sought more frequently in civil litigation and the production and review of ESI can involve greater expense than discovery of paper documents, it is in the interest of justice that all judges, counsel and parties to litigation become familiar with the fundamentals of discovery of ESI. It is expected by the judges adopting these Principles that all counsel will have done the following in connection with each litigation matter in which they file an appearance:
(1) Familiarize themselves with the electronic discovery provisions of Federal Rules of Civil Procedure, including Rules 26, 33, 34, 37, and 45, as
well as any applicable State Rules of Procedure;
(2) Familiarize themselves with the Advisory Committee Report on the 2006 Amendments to the Federal Rules of Civil Procedure, available at
Judges, attorneys and parties to litigation should continue to educate themselves on electronic discovery by consulting applicable case law, pertinent statutes, the Federal Rules of Civil Procedure, the Federal Rules of Evidence, The Sedona Conference® publications relating to electronic discovery.
This is a great set of principles and I like the language and terminology they use. Speaking of language, I began calling my specially trained e-discovery lawyers e-discovery liaisons back in 2008 (my current firm now has at least one liaison for each office). So I was pleased and amused to see the 7th Circuit’s use of the word when they began this program in May 2009. It is a catchy name, and I totally agree with the 7th Circuit that you should have experts like this involved wherever there is a significant e-discovery case.
The Seventh Circuit Principles Are Working
The Phase Two Report observes in the Executive Summary that the principles are having the desired effect on the practice of law among attorneys in the 7th Circuit jurisdiction.
[b]oth the Phase One and Phase Two surveys’ results show that in those cases in which the Principles had a perceived effect, those effects were overwhelmingly positive with respect to assisting attorneys’ cooperation and enhancing their ability to resolve disputes amicably, their ability to obtain relevant documents, and their ability to zealously represent their clients, as well as providing fairness to the process.
I only wish that other jurisdictions would follow suit because there is, believe me, a strong need for this influence on attorneys all over the country.
Ralph Losey is a Friend of AIs, Writer, Commentator, Journalist, Lawyer, Arbitrator, Special Master, and Practicing Attorney as a partner in LOSEY PLLC. Losey is a high tech law firm with three Loseys and a bunch of other skilled attorneys. We handle major "bet the company" type litigation, special tech projects, deals, IP of all kinds all over the world, plus other tricky litigation problems all over the U.S. For more details of Ralph's background, Click Here
All opinions expressed here are his own, and not those of his firm or clients. No legal advice is provided on this web and should not be construed as such.
Ralph has long been a leader of the world's tech lawyers. He has presented at hundreds of legal conferences and CLEs around the world. Ralph has written over two million words on e-discovery and tech-law subjects, including seven books.
Ralph has been involved with computers, software, legal hacking and the law since 1980. Ralph has the highest peer AV rating as a lawyer and was selected as a Best Lawyer in America in four categories: Commercial Litigation; E-Discovery and Information Management Law; Information Technology Law; and, Employment Law - Management.
Ralph is the proud father of two children, Eva Losey Grossman, and Adam Losey, a lawyer with incredible litigation and cyber expertise (married to another cyber expert lawyer, Catherine Losey), and best of all, husband since 1973 to Molly Friedman Losey, a mental health counselor in Winter Park.
1. Electronically stored information is generally subject to the same preservation and discovery requirements as other relevant information.
2. When balancing the cost, burden, and need for electronically stored information, courts and parties should apply the proportionality standard embodied in Fed. R. Civ. P. 26(b)(2)(C) and its state equivalents, which require consideration of importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.
3. As soon as practicable, parties should confer and seek to reach agreement regarding the preservation and production of electronically stored information.
4. Discovery requests for electronically stored information should be as specific as possible; responses and objections to discovery should disclose the scope and limits of the production.
5. The obligation to preserve electronically stored information requires reasonable and good faith efforts to retain information that is expected to be relevant to claims or defenses in reasonably anticipated or pending litigation. However, it is unreasonable to expect parties to take every conceivable step or disproportionate steps to preserve each instance of relevant electronically stored information.
6. Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.
7. The requesting party has the burden on a motion to compel to show that the responding party’s steps to preserve and produce relevant electronically stored information were inadequate.
8. The primary source of electronically stored information to be preserved and produced should be those readily accessible in the ordinary course. Only when electronically stored information is not available through such primary sources should parties move down a continuum of less accessible sources until the information requested to be preserved or produced is no longer proportional.
9. Absent a showing of special need and relevance, a responding party should not be required to preserve, review, or produce deleted, shadowed, fragmented, or residual electronically stored information.
10. Parties should take reasonable steps to safeguard electronically stored information, the disclosure or dissemination of which is subject to privileges, work product protections, privacy obligations, or other legally enforceable restrictions.
11. A responding party may satisfy its good faith obligation to preserve and produce relevant electronically stored information by using technology and processes, such as data sampling, searching, or the use of selection criteria.
12. The production of electronically stored information should be made in the form or forms in which it is ordinarily maintained or in a that is reasonably usable given the nature of the electronically stored information and the proportional needs of the case.
13. The costs of preserving and producing relevant and proportionate electronically stored information ordinarily should be borne by the responding party.
14. The breach of a duty to preserve electronically stored information may be addressed by remedial measures, sanctions, or both: remedial measures are appropriate to cure prejudice; sanctions are appropriate only if a party acted with intent to deprive another party of the use of relevant electronically stored information.
Ralph, thanks so much for the mention of our Program in your blog, the resulting exposure I hope it brings tor our Pilot… and, of course, for your invaluable participation in our workshop yesterday. I’m not sure if you see a spot on the bench in your future, but you put the world on notice duriong our mock that you’d be an excellent jurist if that route ever appealed to you.
In all, we could not have been more impressed by and grateful for our speakers’ knowledge, insight and dedication to the idea that electronic discovery as a whole can be done better, faster and less expensively than the way we often see it done today.
I echo your sentiment that our Principles are meant to be a step in the right direction…. and there is empirical evidence that they are beginning to make a difference in many matters. There are many Principles I could single out as critically important, but the one we definitely tried to shine a bright light on during the mock was the idea that cooperation is possible, even for zealous advocates, and often, it is in the best interest of the clients.
[…] Seventh Circuit Electronic Discovery Workshop on Computer-Assisted Review. The event, which was previously described here, was held in the Ceremonial Courtroom of the Everett M. Dirksen Courthouse in downtown Chicago on […]
That sounds like a great place to have been. I cannot wait for the video when it is available. I got to hear from Maura Grossman (and many other greats) at Georgetown Law’s eDiscovery Training a couple of weeks ago. I’m new to the eDiscovery field (as Litigation Support) and relish in these sort of discussions.
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