E-Discovery in Illinois

 Hon. William J. Haddad and Anthony Abou-Ezzi

            Electronic Discovery (“E-Discovery) indicates a search for electronically stored information, including: records, accountings, emails, images, and audio. Electronically Stored Information (“ESI”) is an extremely important and irreplaceable source of discovery and evidence. Although there are few reported cases on ESI in Illinois, the Seventh Circuit has recently developed important guidelines under Federal Rules of Civil Procedure 26 (b)(1) & (2) and 45 (a)(1)(C), which parallel Illinois Supreme Court Rule 201(b)(1) concerning the production of ESI. 

1.  Testing the Validity of the ESI Request

Courts have discretion in discovery matters “to protect targets of discovery from ‘annoyance, embarrassment, oppression, or undue burden.” Am. Int'l Specialty Lines Ins. Co. v. NWI-I, Inc., 240 F.R.D. 401, 412 (N.D. Ill. 2007). The threshold question is whether the ESI production request is reasonably calculated to lead to the discovery of admissible evidence. Whitlow v. Martin, 263 F.R.D. 507, 511 (Ill. 2010). However, due to the shear volume of information sought with E-Discovery, courts often invoke a proportionality test embodied in Fed. R. Civ. P. 26(b)(2)(C) in order to weigh the likelihood that E-Discovery will lead to relevant information in light of the breadth, burden, and cost of production. In Whitlow, the Seventh Circuit identified these factors as a “relative hardship test,” balancing the burden of compliance with the benefit of production. Id. 

2. Cooperative avoidance of judicial intervention

In order to ensure “the just, speedy, and inexpensive determination of every civil case, and to promote … the early resolution of disputes regarding the discovery of [ESI] without Court intervention,” the Seventh Circuit has adopted a “Standing Order Relating to the Discovery of [ESI]”. (See Seventh Circuit Model Standing Order, at www.discoverypilot.com). According to the Sedona Conference’s Working Group on Electronic Document Retention and Production, Courts expect “counsel to act cooperatively” by gathering the data to be searched, exporting it from the computer, converting it into a searchable format and applying the desired search terms, thereby avoiding irrelevant data. See The Sedona Conference Cooperation Proclamation, 10 SEDCJ 331 (2009). The generated data is reviewed for claims of privilege, confidentiality, and responsiveness to the items requested to ensure that only relevant information is received. Id.; see also DeGeer v. Gillis, 755 F. Supp. 2d 909, 918 (N.D. Ill. 2010). 

3. Cost and Cost Shifting

Typically, the responding party in discovery must bear the expense of production, but courts may shift the cost to the requesting party if the request is unduly burdensome. In deciding, courts may look to: (1) the specificity of the request; (2) the likelihood of discovering critical information; (3) the availability of such information from other sources; (4) the purpose for maintaining the requested data; (5) the relative benefit to the parties of obtaining the information; (6) the cost associated with production; (7) the relative ability of each party to control costs and its incentive to do so; and (8) the resources available to each party. The first two factors are the most important because the higher the likelihood that relevant information will be discovered, the fairer it is for the responding party to pay. See Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568 (N.D. Ill. 2004).

4. Management of E-Disclosure

Once the need and costs for E-Discovery are resolved, some courts have looked to The Sedona Conference, a non-profit legal research and education organization, to determine the appropriate ESI document retrieval and production protocol to adopt. Osborne v. C.H. Robinson Co., 2011 U.S. Dist. LEXIS 123168, *9-10 (N.D. Ill. 2011).  These protocols often include the following: 

a.      Neutral Expert: The court appoints an independent computer expert provided by the parties.  The expert evaluates the computer system with minimal intrusion and forms a discovery plan consistent with the scope of the requests, or identifies disputes.  The expert is an officer of the court under a signed agreement of confidentiality.  Wynmoor Cmty. Council, Inc. v. QBE Ins. Corp., 2012 U.S. Dist. LEXIS 29453, *23-25 (S.D. Fla. Mar. 5, 2012). 

b.      Usable Terms and Format: If the parties cannot agree upon a list of search terms, they would submit objections to the independent expert for later court ruling. In Osborne, one issue concerned the plaintiff’s efforts to discover ESI in a reasonably usable format. The court found that “[i]t was not an unreasonable request for Plaintiff to seek information in either the same … or a similarly manipulable format.” Osborne at 16-17. 

c.      Phased Production: Initially, the court has the option of proceeding cautiously by incrementally phasing in E-Discovery on a limited basis while reserving its ruling on the broader production requests. Wynmoor at 24. 

d.      Respondent Review: During production, an expert may be employed to provide an electronic copy of all responsive documents to the parties and the court. The respondent to discovery would then review the search terms and identify the responsive documents, produce them or log any unproduced documents. Id. 

Conclusion

E-Discovery raises many issues for the courts and litigators to consider. The threshold consideration with all discovery is to weight the relevancy of the request with the burden of production. This may be confounded in the fog of electronic databases and programs.

Before moving for judicial intervention, the parties should cooperate to identify information that is both relevant and cost effective to produce. Where judicial intervention is requested, courts may devise a plan that identifies relevant discovery and a cost effective retrieval process, possibly appointing an independent computer expert who may offer an incremental plan of phased disclosures subject to modification as seen in the Seventh Circuit’s Electronic Discovery Pilot Program. The Program cautions that attorneys who lack a familiarity with the terminology pertaining to ESI should consider enlisting a consultant: “[The] understanding of the feasibility, reasonableness, costs, and benefits of various aspects of [E-Discovery] will inevitably evolve as [practitioners] gain more experience with ESI and as technology advances.”  Seventh Circuit Model Standing Order, at www.discoverypilot.com