Managing risks, costs, data in an age of uncertainty

The explosion of electronically stored information ("ESI") is the reason that the discovery phase is the most expensive component in litigation matters today. The American judicial system has seen the costs associated with adversarial conduct in pre-trial discovery become a serious burden. Over the past several years, courts have seen the escalation of motion practice and the parties' overreaching, obstruction and unproductive discovery disputes.

Because of these events, The Sedona Conference "... launched a national drive in 2008 to promote open and forthright information sharing, dialogue (internal and external), training, and the development of practical tools to facilitate cooperative, collaborative, transparent discovery" (The Sedona Conference Cooperation Proclamation, July 2008).

While lawyers are bound to be zealous advocates for their clients, they also have the professional obligation to conduct discovery in a diligent and candid manner. To waste resources on unnecessary disputes in the name of "gamesmanship" or "hiding the ball" is not in anyone's best interest, but rather only serves to drive the cost of litigation up for all stakeholders.

Following the lead of The Sedona Conference, the Seventh Circuit Electronic Discovery Pilot Program Committee ("Committee") was formed in May 2009. Their purpose is to conduct a multi-year, multi-phase process and ultimately develop, implement, evaluate, and improve pretrial litigation procedures that would provide fairness and justice to all parties while seeking to reduce the cost and burden of electronic discovery consistent with Rule 1 of the Federal Rules of Civil Procedure. The Committee experts developed Principles Relating to the Discovery of Electronically Stored Information ("Principles"), and a Standing Order by which participating judges implement the Principles in the Pilot Program test cases.

The participating judges in this pilot program overwhelmingly felt that the Principles were having a positive effect on counsel's attention to and knowledge about relevant technology when addressing electronic discovery issues with the court. In particular, the judges felt that the involvement of e-discovery liaisons required by Principle 2.02 contributes to a more efficient discovery process.

On Thursday, March 15, the Eastern Michigan Chapter of the Association of Litigation Support Professionals will be conducting a meeting on the topic of "Ethical Issues in Electronic Discovery: Managing Risks, Costs and Data in an Age of Uncertainty."

Adam Bottner from EED-DTI, also an adjunct professor at IIT Chicago-Kent College of Law will be presenting. Bottner will not only discuss the impact of the Sedona Conference Cooperation Proclamation and the Seventh Circuit Electronic Discovery Pilot Program as they relate to electronic discovery, but will also focus on what steps attorneys can take to manage and reduce eDiscovery costs; how to mitigate and reduce eDiscovery risks; and fulfilling legal regulatory and ethical obligations.

Attendees will also learn about other potential eDiscovery ethical issues such as the unauthorized practice of law; the duty to supervise non-attorneys; effective representation/competency; accuracy of discovery certifications; duty of candor; protection of attorney-client privilege; and data mining.

The meeting will take place from 11:45 a.m. to 1:15 p.m. at the offices of Stout Risius Ross, 4000 Town Center, 20th Floor, in Southfield. It is free to ALSP members; $20 to non-members. Lunch will be provided.

This meeting qualifies attendees for one Illinois CLE Professionalism Credit. To register for this event or for additional information, contact Vanessa Lozzi at vanessa.lozzi@flagstar.com.

Published: Thu, Mar 8, 2012

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