Effective as of July 1, 2014, Illinois has new E-Discovery rules relating to the discovery of electronically stored information (ESI). Beginning in January 2012, Johnson & Bell, Ltd. Shareholder, Joseph R. Marconi, was appointed an advisor to the Illinois Supreme Court Committee on Discovery Procedures, the committee responsible for the ESI Discovery reform. The Committee submitted proposals for changing E-Discovery rules and the Illinois Supreme Court adopted some of the proposals by amending Supreme Court Rules 201, 214 and 218.
As many companies and general counsel have noted, electronically stored information—including emails, payroll, databases and financial records—has multiplied the costs of complying with discovery, sometimes elevating those costs above the exposure of the claim. Worse, a company’s obligation to retain, search and provide such information massively increases the risk of discovery sanctions for noncompliance (including evidence and possibly terminating sanctions); and, concomitantly, the chance that confidential or privileged information will be inadvertently disclosed. The federal court system addressed some of these issues with recent reforms to its rules; however, the states, and particularly Illinois, have lagged behind.
The new E-Discovery rules address many of these concerns. For example, the concept of “proportionality” is incorporated as a way to control E-Discovery costs. It covers the avoidance of unreasonably burdensome and expensive discovery requests. The new rules also contain a list of arduous ESI that can be excluded from discovery. What isn’t addressed are issues related to ESI format when produced in discovery, when the duty to preserve ESI starts, ESI preservative measures, and sanctions for ESI loss.
E-Discovery remains a complex issue for companies and their legal counsel. The newly adopted E-Discovery rules provide a reasonable base for accepting, modifying or denying an E-Discovery request. More work remains, but this is a good step forward. Download the rules adopted by the Illinois Supreme Court.
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