Illinois Adopts e-Discovery Rule - Part III

IV. SEVENTH CIRCUIT OF ILLINOIS PRINCIPLES – WHAT THEY ARE INTENDED TO ACCOMPLISH AND WHO HAS ADOPTED THEM

Among the more interesting topics in the Illinois judicial system, the Seventh Circuit of Illinois has acknowledged that electronic discovery is at the forefront of current civil litigation, and thus founded the Seventh Circuit Electronic Discovery Pilot Program Committee in 2009. The Committee’s core mission statement is to comingle two initiatives of electronic discovery: fair procedures and cost-effective tools. In doing so, the Committee has conducted a three-phase process and has developed Principles Relating to the Discovery of Electronically Stored Information (“Principles”). [32] Throughout the three-phrase process, the members of the Committee evaluate, develop and improve the ways in which electronically-stored information is being used in civil litigation.

The Principles of the Committee were founded to “provide incentives for the early and informal information exchange on commonly encountered issues relating to evidence preservation and discovery, paper and electronic, as required by FRCP 26(f)(2).”[33] Since we live in a world where ESI technology is constantly evolving, the Principles are intended to provide guidance to Illinois practitioners on issues commonly encountered in the discovery process of litigation. In fact, the purpose of the Principles is to provide Illinois practitioners with information regarding the “feasibility, reasonableness, costs, and benefits if various aspects of electronic discovery,” since these aspects will “inevitably evolve as judges, attorneys and parties [to litigation] gain more experience with ESI.”[34]

These e-discovery principles are not only helpful and informative to all Illinois practitioners, but are also simplified in ways that make each standard clear and unambiguous. These principles serve as guidelines as to how Illinois practitioners should apply e-discovery tools to their practice. For example, the Principles urge that cooperation between practitioners is at the core of e-discovery in civil litigation. In fact, the Principles explicitly state that “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.”[35]

Not only is the Committee thoroughly educating Illinois practitioners about the discovery process, but roughly one hundred (100) participating judges in Seventh Circuit Illinois courts have adopted and applied these carefully-crafted Principles to cases in which they preside over. Moreover, the Seventh Circuit’s Electronic Discovery Pilot Program’s Principles have been cited by Courts, stating that litigants are expected to be familiar with the Committee’s Principles regarding case management procedures.[36] Up to this point, the Principles seem to be having a positive effect on the Illinois court system.

A. Duty to Preserve

Principle 2.04 clearly states, “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.”[37] Thus, the issue is determining what constitutes “reasonable and proportionate steps.” Although this is determined on a case-by-case fact analysis, it is extremely important for counsel to preserve relevant information so that practitioners are not faced with unwanted sanctions that could hurt its case or client.

Additionally, the party asking for the electronically-stored information needs to be able to prove the ESI’s relevance by stating the special need for the discovery and proving there are no less-intrusive alternative means in obtaining the discoverable information. Most importantly, practitioners need to be aware that the duty to preserve is an ongoing obligation that not only needs to be discussed during the meet and confer stage, but also throughout the entire course of the litigation. By faithfully and truthfully preserving electronically-stored information, the litigation process will run smoothly and efficiently. The Principles urge that “an attorney’s zealous representation of a client is not compromised by conducting discovery in a cooperative manner.”[38] Thus, if ESI is preserved correctly, the cooperation level between opposing counsel will rise, which is of utmost importance during the discovery process.

B. Duty to Meet and Confer

According to Principle 2.01, “prior to the initial statute 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.”[39] The duty to meet and confer is absolutely mandatory. During the meet and confer stage, practitioners have the duty of identifying discoverable ESI, determining the scope of discoverable ESI, and resolving any costs and burden issues counsel may have. Overall, the meet and confer stage of litigation is particularly important because not only is this the appropriate time for the practitioners to determine a road map for the upcoming litigation, but this is also the time for practitioners to express any questions or concerns with opposing counsel.

But why is the duty to meet and confer often overlooked? It does not come as much surprise that due to advances in technology, including emails, instant messaging, text messaging and social media, we are in the midst of an era in which people no longer personally meet face-to-face to discuss crucial matters. In fact, recent studies have shown that nearly ninety percent of communication is done via nonverbal communication. While this may be more efficient in the workplace, it can lead to confusion, misperception and chaos.

A recent Forbes article stated: “The idea of doing business on the golf course seems anachronistic these days, but the reason why the concept became so iconic is because it proved that when colleagues spend personal time together – face to face – more progress can be made, deals can get done and relationships can deepen, allowing the colleagues to function more effectively off the course.”[40] Here, the practitioners’ duty to meet and confer is analogous to meeting on the golf course, since the purpose of this stage is to exchange valuable information and express concerns, which ultimately increases effective communication between the parties.

The responsibility to meet and confer has even been noted in Zubulake IV: “Lawyers need to communicate clearly and effectively with one another to ensure that litigation proceeds efficiently. When communication between counsel breaks down, conversations become ‘just crossfire,’ and there are usually casualties.”[41]

C. Duty to Collect for Production

Often times, the duty to collect for production occurs during the meet and confer stage prior to the initial status conference. Practitioners must arrive at the meet and confer knowledgeable about how their client’s data is stored and retrieved. Once the parties have decided what information is discoverable, each party has the duty to collect ESI and produce it to the other party. This duty requires vigilance, honesty, and cooperation. If the Court determines that the practitioner did not act in good faith in collecting and producing discoverable ESI, the Court has the ability to either request an addition meet and confer, or impose sanctions, both of which are costly, time consuming and inefficient for client representation.

D. Format of Production

Under Principles 2.05 and 2.06, counsel has the responsibility of deciding which methodology will be used for ESI production. [42] This decisions must be agreed upon during the meet and confer stage. In essence, agreeing upon which ESI is discoverable and the ways in which it should be produced is a collaborative effort by both parties. Each party has the responsibility of formatting ESI in a way that is easily transferable to the other party. Issues that arise when formatting ESI for production include, “eliminating duplicative ESI,” and also “filtering data bases on file type, data ranges, search terms,” or any other restrictions the parties deem proper. [43]

Additionally, if any issues arise as to counsel’s good faith efforts in preserving and producing the electronically-stored information in the decided-upon format, the issue must be addressed immediate with the presiding judge.

E. Receiving Information from Opposing Counsel

As stated in Principle 2.03, counsel can request the preservation of discoverable and relevant information “through the use of a preservation letter request or order.”[44] This order must be specific and unambiguous, and request only relevant electronically-stored information. If the order does not meet this specificity standard, the Court may reject the preservation order. While it is not mandatory, the party receiving the order may respond to the order either with the relevant information the requesting party is seeking, or with a rebuttal as to why the information being requested is not discoverable, such as the information may be privileged.

Most importantly, the purpose of this order is to facilitate communication and cooperativeness. Thus, each practitioner must act in good faith no matter if the practitioner is the party sending or receiving the request order.

F. Examining the Discovery Data

Rule 1 of the FRCP states that the federal rules “should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”[45] That being said, a major concern for most practitioners is obtaining the most cost-effective e-discovery tool(s) available. In civil litigation today, electronically-stored information plays a major role in the discovery process. While this leads to a more modernized judicial system, ESI discovery can be extremely costly and burdensome on the parties. Unfortunately, “this is caused in good part by the sheer volume of ESI but also by the reluctance or inability of some lawyers to adopt cost‐effective strategies.” [46]

The most important tactic in reducing the cost of collecting electronic data is to hone in on relevant records. Since it can be extremely costly to collect and produce ESI, parties have the responsibility of reviewing and collecting only relevant ESI. If practitioners focus only on relevant ESI, their costs of copying and preserving the original metadata and converting the ESI to a format available for people outside of the system to view can be drastically reduced.

Another important cost-effective tool practitioners should be aware of is to avoid the duplication of electronically-stored information. “Duplicate files can make up as much as 60-80 percent or more of the records in a collection.”[47] Thus, it would make sense that a practitioner should avoid examining the same document more than once to escape unnecessary costs. [48] Since there is no such database that performs duplicate consolidation, the people performing the production review are responsible for consolidating each document so that the final production does not include a number of duplicates. In order to do this, the most effective method is for the reviewer to list each document by its custodian, or the person who presently has the document, and “cross-check that against the number of times that person’s name or email address appears as a sender or recipient.”[49] This is effective because not only does it form a pattern in which the reviewer can easily remove the duplicates that will be found in the sender and recipient’s possession, but the process can indicate problems in collecting data if certain documents are not recovered. Thus, practitioners need to be aware that duplicate consolidation is a crucial process that ultimately discovers any errors prior to litigation and reduces the costs of reviewing documents more than once.

After the ESI has been collected, parties are then faced with the process of producing the e-discovery to the other parties. While there are several methods of achieving this process, the most “inexpensive and efficient way to produce the documents is to provide the requesting party with access to a secure and designated section or folder on the application [database].”[50] In essence, the sending party will give the requesting party a URL, user name, and password. This is cost-effective because the sending party is not actually producing an external hard drive, but rather giving access to the original database.

Ultimately, there are many ways in which practitioners can cut costs when dealing with electronic discovery. As seen from the examples listed above, it takes commitment and patience to successfully consolidate only relevant documents for production. However, if done correctly and efficiently, the payoff for practitioners and their clients can be substantial.

V. USING ESI AT TRIAL

Authentication occurs when a court confirms that a document is what the litigant purports it to be. Federal Rule of Evidence (“FRE”) 901 provides that “the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what the proponent claims.”[51]

Lorraine v. Markel is a fundamental case that confronted authentication of electronically-stored information and established a detailed criterion for admitting the use of ESI in court.[52] Mr. Lorraine owned a yacht, Chessie, which was severely damaged by lightning. After Markel American Insurance Company awarded costs to Lorraine to repair the boat, more damage to the hull of the boat was discovered after the yacht was removed from the water.[53] The parties went to arbitration and came to a settlement agreement. As the court was reviewing the agreement, it noted that the language of the agreement was ambiguous and thus, the court would need to analyze the documentary evidence between the parties, including e-mails and other extrinsic evidence. However, none of the documents were authenticated and were simply attached to the parties’ motions as exhibits.[54] The court acknowledged that “research has failed to locate a comprehensive analysis of the many interrelated evidentiary issues associated with electronic evidence,” and thus, Judge Paul Grimm formulated a specific standard for determining the authenticity and admissibility of ESI.

Quoting Judge Grimm, “whether ESI is admissible into evidence is determined by a collection of evidence rules that present themselves like a series of hurdles to be cleared by the proponent of the evidence.”[55] In fact, “failure to clear any of these evidentiary hurdles means that the evidence will not be admissible.”[56] The court determined that if ESI is offered as evidence, than the court must consider several evidence rules: (1) is the ESI relevant as determined by Rule 401; (2) if relevant under 401, is it authentic as required by Rule 901(a); (3) if the ESI is offered for its substantive truth, is it hearsay as defined by Rule 901, and if so, is it covered by an applicable exception; (4) is the form of the ESI that is being offered as evidence an original or duplicate, or is there admissible secondary evidence to prove to content under Rule 1001-1008; and (5) is the probative value of the ESI substantially outweighed by the danger of unfair prejudice or one of the other factors identified by Rule 403.[57]

To simplify this process, there are several ways in which a practitioner can introduce and properly authenticate e-discovery under FRE 901. For example, courts have held that documents provided to a party during discovery by an opposing party are “presumed to be authentic, shifting the burden to the producing party to demonstrate that the evidence that they produced was not authentic.”[58] On the other hand, some courts have taken judicial notice of certain “foundational facts” needed to authenticate an electronic record, such as facts that are (1) generally known within the jurisdiction, or (2) capable of accurate determination by reliable resources. [59] Most commonly, courts have found that ESI found in databases are business records if they are maintained in the ordinary course of business.

However, the most abundant form of ESI is emails. Lorraine v. Markel establishes the many ways in which an email can be authenticated. Emails can be authenticated by either direct or circumstances evidence. For example, a print out of an email that bears the sender’s email address serves as circumstantial evidence that he email was sent by the individual listed as the sender. Additionally, “the contents of the email may show authentication by revealing details known only to the sender and the person receiving the message.”[60] However, emails may also be self-authenticating since business emails often contain information identifying the employer-company.

Regardless of what form of authenticate a practitioner choses to engage, Lorraine v. Markel hones in on the practical issues practitioners may face during the authentication and admissibility stage of civil litigation. In doing so, the Court’s opinion lists nearly every form of ESI imaginable, from computer animation to digital photographs, and instructs practitioners as to how they are to authenticate that evidence. Thus, Lorraine v. Markel is one of those cases that must be read by all practitioners.

VI. PRACTICE POINTERS FOR ILLINOIS PRACTITIONERS

Since most practitioners are more comfortable when confronted with paper discovery, this Article introduces several “Practice Pointers” that are intended to alert practitioners about issues they may face when dealing with electronic discovery. Each practitioner has a duty to zealously advocate for his or her client. In doing so, there are particular “Practice Pointers” Courts are expecting from diligent practitioners. Unfortunately, a party to a case can be adversely affected by his lawyer’s failure to abide by the Federal Rules of Civil Procedure or the Federal Rules of Evidence (e.g., the case could be dismissed; severe sanctions could be imposed, etc.). These pointers, which have been integrated into the Seventh Circuit Pilot Program Committee’s Principles, will force practitioners to become more conscious of their role in the litigation process.

Duty to Preserve:

  • Send Preservation letters to the opposition early.
  • After litigation commences:
    • Send a Scope of Discovery Letter asking for FRCP 26 Disclosures
    • Be specific as to how you want production to be made
    • Include a request for production in Native File Format and metadata.
    • Move for a comprehensive preservation order early – define key terms, such as “metadata” in the order.
  • CYA – Send Preservation Letters to your clients and don’t forget your client’s computers and social media outlets!
  • Protect your client from any inadvertent destruction and REMIND YOUR CLIENT OF THEIR DUTY TO PRESERVE ALL ESI.
    • This should be done at the time you are retained.
    • You must protect your client from any inadvertent destruction of their ESI.
    • You should examine your client’s data preservation system and prepare your clients’ production as soon as possible.

Duty to Meet and Confer:

  • There is an affirmative responsibility to cooperate under the Rules and failure to cooperate is grounds for sanctions.
  • Do not ask for everything in the other parties’ computers since the cost of production and review may make it impractical.
  • You must produce your client’s document management policy and you must insist on getting it from the other party.
  • Demand production in a usable format as soon as possible.
  • Explore means of minimizing the cost of e-discovery.

Duty to Produce Discovery

  • Follow up production requests with 201(k) letters and offers to meet and confer.
  • File motions to compel production that include sufficient information to educate the judge on the seven criteria from the Committee Notes to FRCP 26(b)(2) which were adapted from Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003).
VII. CONCLUSION

The times and the courts are certainly changing. Ultimately, one thing is true: the 21st Century trial lawyer needs to have a thorough grasp of technological advances in order to zealously represent his or her client. E-discovery plays a major role and threatens to swallow up civil litigation today. Since e-discovery tools and techniques are constantly evolving as technology advances, it is crucial for practitioners to stay alert and mindful of the impact ESI can have on litigation. Practitioners should familiarize themselves with the Federal Rules and the case law that stems from these rules, as well as how the FRCP have been incorporated into the Illinois Supreme Court rules.

In preparing for this brave new world of litigation, there are several must read cases: Zubulake I, Zubulake II, and Lorraine v. Markel. While these cases are fundamental for practitioners, the Seventh Circuit Electronic Discovery Pilot Program Committee’s Principles should also serve as guidance to Illinois practitioners as to how electronic discovery will be used in civil litigation.

© Copyright 2014 – George S. Bellas