Under the leadership of Chief Judge James F. Holderman, Nolan has helped launch a pilot program to address electronic discovery issues: 7th Circuit E-Discovery Pilot Program. Taking their cues from, among other sources, the Sedona Conference Cooperation Proclamation, the 7th Circuit E-Discovery Committee is attempting to fix some of the most intractable discovery problems in litigation.
Amendments to the Federal Rules of Civil Procedure put in place at the end of 2006 were supposed to force lawyers to meet and hash out discovery issues early. However, Nolan, Holderman and other judges are frustrated that despite the rule changes, electronic discovery continues to be an expensive and inefficient process in need of reform. "The central premise of the 2006 amendments is to meet and confer with the other side and settle issues early," says Magistrate Judge John Facciola of the U.S. District Court for District of Columbia. "The fact that this project exists suggests that the hopes have not been fully realized."
The 7th Circuit sought to involve all parties in the process, including trial judges and lawyers, whether they are in-house counsel, private practitioners, government attorneys, academics, or litigation consultants. An effort was even made to bring litigants into the process, so the clients’ perspective could be heard. But as is often the case when lawyers confront discovery issues, discussions became so heated that Nolan had to step in to mediate so that a final project proposal could be drafted. "I had to do some mediation to make sure all sides got heard," she says. "It was a little trying, but it was probably good for everyone to find out they could confront the issues and not have everything implode."
The 7th Circuit, which covers the states of Illinois, Indiana and Wisconsin, launched the E-Discovery Committee in May of 2009 to take action to reduce what was perceived to be the rising burden and cost of discovery. They produced a set of principles, which provide discovery guidance for lawyers in cases that parties agree to litigate as part of this project. Nolan says that since the project has been implemented there has been very little conflict over discovery. "I think it is working, because of every case I have heard in this project, I have not had one [discovery] motion," she says.
However, the court has only just concluded phase one of the project and a new, two-year phase two should begin this fall.
Phase two will increase the number of cases, as well as participating lawyers and judges, and incorporate suggested changes from the first phase. The first phase was relatively limited in scope, so that the feedback and surveys did not always provide meaningful data. The committee hopes that with more participants, they will get more meaningful survey results and feedback to further refine and improve the project’s guidelines.
What do lawyers need from the bench to navigate e-discovery disputes? The pilot project explicitly states that "an attorney’s zealous representation of a client is NOT compromised by conducting discovery in a cooperative manner," creating a foundation for a cooperative process. "The key is that it sets out that noncooperation is sanctionable," says Steven Teppler with Edelson McGuire, who is a member of the committee and had several cases that were part of the project. "How can you do discovery if the other side won’t? But if it looks like it will be a fair process, then it makes parties less obstinate."
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