From Law.com:

The results of the first phase of a closely watched federal court pilot program on electronic discovery show that having a set of fair-play rules at the outset of a case helps quell pretrial brawls between parties.

The goal of the program, launched in May 2009 and spearheaded by James Holderman, chief judge of the Northern District of Illinois, was to find ways to reduce the massive costs and burdens of electronic discovery. Chairing the program is Magistrate Judge Jan Nolan, also of the Northern District of Illinois.

The first-phase of the 7th Circuit’s pilot program indicated that when judges and attorneys had a set of specific principles to guide electronic discovery, it improved the process — or, at least, didn’t make it worse.

“It was very encouraging,” said Holderman.

The first phase of the program involved 13 district court judges overseeing 93 civil cases and 285 attorneys between October 2009 and March 2010. The program required the judges and attorneys to follow a set of principles, drafted by the program’s committee members, during electronic discovery.

Law.com – Federal Pilot Program Curbs E-Discovery Fights

Three articles have come out this week that I really like.  The first was posted yesterday from Zuzana Ikels, partner at Coblentz, Patch, Duffy & Bass, entitled When E-Discovery Is Used as a Weapon. It’s about the dangers in using e-discovery tactics in order to find ways to break attorney-client privilege with your opponent. Ikels fear attorneys invoking the crime-fraud exception will really weaken our sacrosanct privilege rights.

After the jump I will ment two more articles of note including one which will the focus of my Above The Law post tomorrow.

Ellen C. Brotman and Michael B. Hayes, do a great job summarizing the now infamous Broadcomm v. Qualcomm case in Risk Management and E-Discovery: Qualcomm Revisited. The article discusses how the attorneys for Qualcomm avoided sanctions in this case, and how attorneys can avoid sanctions in the future.

Lastly, Leigh Jones from the The National Law Journal, discusses the 2010 Conference on Civil Litigation in Show Us the Love to Avoid Discovery Fights, Attorneys Urge.  The post talks about the need for attorneys and judge to be more cooperative and hands on during the discovery process.  Look for me on Above The Law tomorrow, as I will be discussing this article further.

From Ralph Losey:

In a major coup for The Sedona Conference and electronic discovery specialists everywhere, Associate Justice Stephen Breyer of the United States Supreme Court has weighed in on e-discovery and written the preface to a special supplement of the Sedona Conference Journal, The Sedona Conference Journal, Vol. 10 Supplement, Fall 2009. Here is an excerpt from the Preface by Justice Breyer:

[The articles in this Supplement] suggest that if participants in the legal system act cooperatively in the fact-finding process, more cases will be able to be resolved on their merits more efficiently, and this will help ensure that the courts are not open only to the wealthy. I believe this to be a laudable goal, and hope that readers of this Journal will consider the articles carefully in connection with their efforts to try cases…

From Electronic Discovery Law:

Mirbeau Geneva Lake, LLC v. City of Lake Geneva, 2009 3347101 (E.D. Wis. Oct. 15, 2009)

In this litigation over the attempted development of land in the City of Lake Geneva, plaintiff sought to compel production of all of defendants’ “computers and other electronic storage devices” for forensic examination.  In support of the motion, plaintiff argued that defendants’ offer to produce emails in “paper form” was insufficient and that defendants were not properly preserving data for production.  Noting plaintiff’s failure to make a sufficient showing in favor of such production and the parties’ failure to cooperate to reach agreement on the issues presented, the court denied plaintiff’s motion.

Electronic Discovery Law – Court Denied Motion to Compel Sequestration and Forensic Examination of City’s Computers and Storage Devices, Directs Parties to Cooperate to Develop a “Meaningful Discovery Plan”

From Jennifer H. Rearden and Farrah Pepper in the New York Law Journal:

The Cooperation Proclamation asks a timeless question: Can’t we all just get along? Although this pronouncement by The Sedona Conference is only a few pages long, its drafters seek no less than a “paradigm shift for the discovery process.” Specifically, the Cooperation Proclamation encourages “a national drive to promote open and forthright information sharing, dialogue (internal and external), training and the development of practical tools to facilitate cooperative, collaborative, transparent discovery.” On the theory that overzealous discovery costs too much and yields too little, the Cooperation Proclamation aims to curb the knee-jerk and often counterproductive aggression sometimes exhibited by counsel in discovery. In this respect, its goal is the same as that of Rule 1 of the Federal Rules of Civil Procedure: to promote the “just, speedy, and inexpensive determination of every action…”