The judges of the Seventh Circuit recently announced that they were commencing the first phase of an e-discovery program that will run from October 1, 2009 through May 1, 2010. According to the court, the goal of the principles of the program is "to incentivize early and informal information exchange on commonly encountered issues relating to evidence preservation and discovery, paper and electronic, as required by Rule 26(f)(2)." Seventh Circuit Electronic Discovery Pilot Program, Statement of Purpose and Preparation of Principles 9 (2009), http://www.ilcd.uscourts.gov/statement%20-%20Phase%20One.pdf) ("Purpose and Principles").
This edition of E-Discovery Connection contains articles covering three important electronic discovery topics. First, Chris Hanslik discusses the admissibility of electronic evidence and the guidance provided by the United States District Court for the District of Maryland in the 2007 decision of Lorraine v. Markel American Insurance Company. Second, Richard Schneider and Ronni Solomon provide a comprehensive discussion of cost-shifting under the discovery rules of the Federal Rules of Civil Procedure.
The subject of admissibility of electronically stored information ("ESI") has not been explored in detail by the courts. Discovery of ESI can be very expensive; yet, practitioners have no clear guidelines as to how to ensure their ESI is admissible at trial or for summary judgment purposes—enter Lorraine v. Markel American Insurance Company. The court in Lorraine wrote a decision that could qualify as the most concise and complete exposition of admissibility analysis related to electronic evidence.
The production of electronically stored information ("ESI") is an issue that arises in most litigation in federal court. Corporations are incredibly sensitive to the costs associated with the production of ESI and are seeking creative ways to reduce costs. A natural tendency for in-house lawyers and business executives is to think that the party requesting the discovery of ESI should be required to pay for the costs associated with its production and to send their external lawyers on a quest to recover these costs.