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Circuit training to strengthen legal outsourcing

IP Review Online
Monday, September 12, 2009

A major US legal jurisdiction has launched a pilot programme to boost awareness of e-discovery - a cornerstone of IP litigation and the legal process outsourcing (LPO) sector. Covering the states of Illinois, Wisconsin and Indiana, the Seventh Circuit has started the programme to help litigation parties control severe costs that have arisen from a boom in electronic documents. A special committee will decide the circuit's future policy in the field and set formal rules for e-discovery conduct in the three states.

The news echoes recent findings on the UK legal industry, revealed in June by Lord Justice Jackson. In an interim report on his lengthy review of UK legal economics, Lord Jackson remarked upon the 'prodigiously expensive' nature of disclosing and reviewing electronic documents. Industry experts have cited the growth of electronically stored information (ESI) as a key source of future business for legal outsourcing firms.

The Seventh Circuit said it had launched its programme in response to a groundswell of 'comments by business leaders and practising attorneys, regarding the need for reform' of the pre-trial discovery process in US civil actions. The programme has also been spurred by the release of a major report on the field by two notable bodies: the American College of Trial Lawyers Task Force on Discovery, and the University of Denver's Institute for the Advancement of the American Legal System.

According to the Seventh Circuit's outline for the programme, published this month, the committee consists of over 40 discovery experts, 'including in-house counsel, private practitioners, government attorneys, academics and litigation consultants'. Organisations represented in the group include McDermott Will & Emery - home to a renowned IP practice - and the in-house teams of McDonalds, Sara Lee and General Electric.

A key priority for the committee is to ensure that litigation practitioners in the Seventh Circuit train themselves thoroughly on e-discovery issues. '[As] discovery of ESI is being sought more frequently in civil litigation,' it said, 'and the production and review of ESI can involve greater expense than discovery of paper documents, it is in the interest of justice that all judges, counsel and parties to litigation become familiar with the fundamentals.'

The programme also aims to formalise discussions of e-discovery plans between litigation parties during pre-trial consultations. 'An attorney's zealous representation of a client is not compromised by conducting discovery in a cooperative manner,' it said. 'The failure of counsel or the parties to litigation to cooperate in facilitating and reasonably limiting discovery requests and responses raises litigation costs and contributes to the risk of sanctions.'

Topics for discussion, said the committee, would embrace a host of document solutions that pave the way for effective trial proceedings. Many of the tools it mentions are regularly employed by legal outsourcing firms, such as eliminating duplicate ESI; filtering files based on type, date-range or keywords; and mathematical or thesaurus-based concept clustering.

In the coming months, the committee will monitor a series of Seventh Circuit cases in which the trial judges have agreed to follow the programme's basic principles. To gauge its success, findings will be revealed at next May's annual meeting of the circuit's bar association. This will give way to a second phase of the programme, lasting until mid-2011.

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