7th Circuit Order for Management of Privileged ESI

The Tip of the Night for October 23, 2015 discussed the 7th Circuit's E-Discovery Pilot Program. The [Proposed] Pilot Project Case Management Order No. 2, available on the 7th Circuit's e-Discovery Council site, provides further insight into how the United States Court of Appeals for this circuit recommends that parties protect attorney-client privilege and work product.

This draft order states that parties should provide, "as much objective metadata as is reasonably available" on a privilege log, in addition to stating the basis of the privilege. The order specifically defines objective metadata as data not containing a description of ESI. The order allows for the designation of categories of ESI or documents that can be withheld because their production would be too burdensome.

If there are challenges to the assertion of privilege by one party or the other, the parties must meet and confer in order to make a good faith effort to designate categories for the documents at issue. The parties must prepare briefs on the legal issues pertaining to each category, and provide samples from each category for in camera review by the court if the issues cannot be resolved on the basis of the briefs.

The order also has a section providing for the clawback of privileged documents pursuant to Federal Rule of Evidence 502(d).