By Cathy Lopez
On Oct. 1, the Seventh Circuit in Chicago launched an Electronic Discovery Pilot Program (EDPP) that aims to “foster a better balance for the ‘just, speedy and inexpensive’ determination of cases.”
Although the EDPP principles aim for the right target, the efficacy of the principles may be compromised by the watering down of the important role of e-discovery liaison.
The EDPP was presented by a committee of 40 trial judges, lawyers, academics and litigation expert consultants who worked for months drafting and editing a series of principles that aim to clarify and improve the current Federal Rules of Civil Procedure, especially those related to electronically stored information (ESI).
The EDPP principles are being tested in Seventh Circuit courts between October 1 and May 1, 2010. During this period, judges will implement the principles in selected cases by adopting a standing order to be followed by the court and litigants throughout the selected proceedings. The principles will then be evaluated via participant questionnaires.
Anyone practicing e-discovery is aware that the amendments made to the FRCP in 2006 have spurred heavy debate on what constitutes reasonable e-discovery efforts and practices. It’s clear that as technology improves, the FRCP must evolve to manage the time and cost incurred by all parties struggling to keep up with e-discovery. As a means to achieve this end, the EDPP principles are certainly welcome, but they do raise some concerns.
One of the EDPP principles calls for an e-discovery liaison for purposes of “meeting, conferring and attending court hearings.” In theory, this sounds like a great idea. Unfortunately, serious flaws exist with the committee’s definition of an e-discovery liaison. This person must:
• Be prepared to participate in e-discovery dispute resolution;
• Be knowledgeable about the party’s e-discovery efforts;
• Be, or have reasonable access to, those familiar with the party’s electronic systems and capabilities in order to explain those systems and answer relevant questions; and
• Be, or have reasonable access to, those knowledgeable about the technical aspects of e-discovery, including electronic document storage, organization, format issues and relevant information-retrieval technology, including search methodology.
Sound familiar? If it does, it’s because in early March 2007, the standard for discovery of ESI for the U.S. District Court for the District of Delaware was updated by an ad-hoc committee led by Chief Judge Sue L. Robinson. The committee calls for an e-discovery liaison who must:
• Be prepared to participate in e-discovery dispute resolutions;
• Be responsible for organizing the party’s e-discovery efforts to insure consistency and thoroughness and, generally, to facilitate the e-discovery process;
• Be familiar with the party’s electronic systems and capabilities in order to explain these systems and answer relevant questions; and
• Be knowledgeable about the technical aspects of e-discovery, including electronic document storage, organization, format issues.
Although the two definitions are similar, one noticeable phrase has been added to the EDPP principle: “Be, or have reasonable access to those who are…”
Two years ago, the District of Delaware placed a high standard for a liaison who had certain skills: The liaison must be knowledgeable about technical aspects of e-discovery. The liaison must be familiar with the party’s electronic systems. The liaison, in short, should be someone who knows what’s going on behind the scenes in their client’s IT department.
The EDPP’s e-discovery liaison is a muted version of the original. Today’s liaison need only have “reasonable access to” someone who knows what’s going on behind the scenes.
Why did the EDPP feel the need to reduce the qualifications for an e-discovery liaison? One possibility: Finding an expert in both the legal and technical sides of e-discovery is challenging. Not many attorneys understand the inner workings of an Exchange server or appreciate the nuances of slack space on a hard drive. Likewise, not many technicians understand the local and federal rules that apply to electronic evidence.
Granted, it may be more challenging to find an expert in both the law and technology, but this doesn’t warrant making the title of e-discovery liaison easier to obtain. The standards should be set high, and experts in the e-discovery field should meet them.
Moreover, by including the “reasonable access to” modifier, the EDPP principles do nothing to address one of the most common barriers to effective e-discovery: Miscommunication and noncommunication between attorneys and IT personnel. Thus, ignorance and misunderstanding will likely continue to be the first line of defense for parties (and their attorneys) facing e-discovery compliance disputes.
The EDPP principles aim for the right target: E-discovery that helps parties move forward with the case at hand. Unfortunately, by watering down the important role of e-discovery liaison, the usefulness of the principles may be limited.
Cathy Lopez is manager of client solutions at Blank Law + Technology PS. She has worked at Blank Law + Technology since early 2004, most recently as project manager on e-discovery projects. As a project manager, Ms. Lopez worked closely with clients on large and small projects involving the preservation, collection and production of electronic documents. Ms. Lopez also trained and supported legal teams using iConect and Relativity online review platforms. As manager of client solutions, she works with paralegals and litigation support professionals to provide insight to e-discovery services and best practices. Ms. Lopez also manages the Electronic Data Extraction Network (EDEN), a national community of electronic discovery and computer forensic professionals. She graduated from the University of Washington in 2003 with a bachelor’s degree in communications.
