Illinois Adopts e-Discovery Rule - Part I

By George Bellas and Amanda Lueth^[1]

Come gather 'round people
Wherever you roam
And admit that the waters
Around you have grown
And accept it that soon
You'll be drenched to the bone
If your time to you
Is worth savin'
Then you better start swimmin'
Or you'll sink like a stone
For the times they are a-changin'.

Bob Dylan’s words were never truer than today in the legal world where technology has fully embraced the practice and lawyers must face the new order of a technology based practice. . The court systems in the United States – and now, finally, Illinois – have moved away from paper-based discovery to electronic discovery (“e-discovery”) – an updated version of discovery that prevents abuse, allows for flexibility, and weighs the benefits and burdens of discovery requests. Although the FRCP regarding e-discovery were implemented in 2006, the Illinois Supreme Court Rules were not amended to include e-discovery until July 1, 2014. For nearly eight years, Illinois practitioners have been aware of e-discovery and its application in federal courts but had not considered it as a fundamental change in Illinois – until now.

Illinois practitioners not only must learn to work within the amended Illinois rules, but because the rules are based on the Federal Rules, practitioners should also familiarize themselves with the now well-established Federal rules and case law. For example, the series of decisions known as Zubulake I, II, III, IV, and V paved the way for electronic discovery and discussed several important issues relating to e-discovery including cost-shifting for the production of electronic discovery and adverse inference sanctions. ^[2] Zubulake I and II are seminal cases that led to the amendments of the FRCP in 2006. Additionally, the case of Lorraine v. Markey American Insurance Co. is a landmark case that outlines the rules for authenticating ESI and determining its admissibility in court.^[3] Since Illinois does not have an abundance of opinions concerning how electronic discovery should be used in court, the FRCP and its decisions should serve as authority as to how the Illinois rules should be applied.

Our business law attorneys at the Chicago firm of Bellas & Wachowski Attorneys at Law are available to help you with any questions you may have regarding e-discovery.

Additionally, this article will introduce several key concepts and guidelines that have been adopted by the Seventh Circuit Court in Illinois to help alleviate confusion about ESI and e-discovery. In doing so, this article will incorporate some “Practice Pointers” that will allow Illinois practitioners to advocate for their client and remain within the boundaries of the e-discovery rules. Some of these “Practice Pointers” include (i) the duty to preserve, (ii) the duty to collect for production, (iii) how to format production, (iv) how to receive information from opposing counsel, (v) the obligation the meet and confer, and (vi) how to examine the data using cost-effective e-discovery tools.

Electronic discovery is discovery in a civil litigation that deals with the exchange of electronically-stored information (“ESI”). ESI includes, but is not limited to “emails, documents, presentations, databases, voicemails, audio and video files, social media, and web sites.”^[4] ESI plays a fundamental role in the litigation process not only because it is an intangible form of discovery, but also because the electronically-stored files contain metadata. Metadata is information that is unique to ESI because it can include crucial evidence that cannot be found in a tangible document, such as the exact time and date an email was written, whether a document was altered, or if a file was received and read.

In 2006, the Federal Rules of Civil Procedure (“FRCP”) were broadly amended to include provisions for e-discovery. FRCP 34 lays the foundation for electronic discovery in the court system of the United States. Generally, FRCP 34(a)(1)(A) states, “a party may serve on any other party a request within the scope of [FRCP] Rule 26…any designated documents or electronically stored information – including writings, drawings, graphs, charts, photographs, sound recordings, images and other data or data compilations – stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form.”^[5] Most importantly, the 2006 Committee Notes of FRCP 34 explicitly stated that, “Rule 34(a) is amended to confirm that discovery of electronically stored information stands on equal footing with discovery of paper documents.”^[6] The expansion of the discovery definition (to include electronic discovery) placed ESI on the same level as paper discovery, which was a significant step towards a modernized court system in the United States.

The growing problem practitioners are facing is that almost mostly all discovery in civil litigation is electronic. Corporations and legal firms are required to practice with due diligence to uphold the duty to preserve and present discoverable evidence found in ESI. While it may appear that e-discovery has played a major role in civil litigation throughout the last ten years, the truth of the matter is that e-discovery is just now at the forefront of discovery rules, as seen by the fact that Illinois had not adopted its Supreme Court rules concerning electronic discovery until 2014. Thus, it is extremely important for Illinois practitioners to understand the purpose of the federal decisions regarding e-discovery, how the newly-implemented Illinois rules will be applied, and what Illinois practitioners need to be aware of in order to avoid costly mistakes and/or sanctions.

If you have any questions regarding the legal aspects of e-discovery, contact the Chicago business attorneys at Bellas & Wachowski Attorneys at Law for further guidance.