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7th Circuit E-Discovery Pilot Program

Visit to review the resources of the 7th Circuit's e-discovery pilot program. Beginning in 2009, the 7th Circuit brought together a group of technical experts and lawywers who established a set of principles to assist with ESI discovery under FRCP 1. There are 11 different principles in three main areas. Note in partcular the types of ESI which it specifies are not generally discoverable, which are different than what you see listed in Zubulake and elsewhere.

1. General

1.01 Purpose

1.02 Cooperation

1.03 Proportionality

The principles emphasize cooperation and proportionality to insure the early resolution of ESI disputes under FRCP Rule 1 for the just, speedy, and inexpensive determination of legal disputes.

2. Early Case Assessment

2.01 Meet & Confers to resolve disputes early.

2.02 E-discovery liaisons to facilitate the meet and confer process.

2.03 Detailed and precise preservation requests and orders.

2.04 Scope of Preservation

generally non-discoverable:

1. deleted, slack, fragmented, or unallocated on hard drives.

2. RAM or ephemeral data.

3. temporary files, cache data and cookies

4. meta data fields that get updated frequently.

5. Backup data that is substantially duplicative of data more accessible elsewhere.

6. Other ESI that can only be preserved with extraordinary measures outside the ordinary course of business.

2.05 Identification of ESI through keyword searching, file type filtering, and deduplication.

2.06 Product Format - which the parties should agree upon at the 26(f) conference.

3. Education

3.01 Judicial Expectations of Counsel - focus on FRCP Rules 26, 33, 34, 37 and 45, and the Advisory Committee Report to the 2006 amendments to the FRCP.

3.02 Duty of Continuing Education - by referring to the Sedona Conference publications as wells as case law, statutes, the FRCP and the FRE.

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