Cooperative Dialogues with Opposing Counsel & Judges
- 26(f) Conferences
- Relevancy Dialogues
- 16(b) Hearings
- Requests for Production, Metadata, and Form of Production
- Countering Non-Cooperators
- Early Motion Practice
- Settlement, Mediation and Special Masters
General. The fifth step of Cooperation in EDBP is key to the efficient and economical handling of electronic discovery. Cooperative dialogues can protect a parties preservation activities – steps 2, 3 and 4 – as discussed in the Preservation page. They can also set-up and facilitate the document review steps 6, 7 and 8 by obtaining agreements, or failing that, court orders that protect you from expensive re-dos. Cooperation also prepares the way for smooth, risk-mitigated productions, step 9.
It should aso be noted that a minimum level of cooperation on discovery is more than a best practice to strive for, it is a base minimum standard of reasonable care required under rules of professional ethics and rules of civil procedure. See Eg. Rule 1, Rule 26(g), FRCP; Mancia v. Mayflower Textile Services. Co., 253 F.R.D. 354 (D.Md. Oct. 15, 2008); Losey, R., Mancia v. Mayflower Begins a Pilgrimage to the New World of Cooperation, 10 Sedona Conf. J. 377 (2009 Supp.); The Bull’s-Eye View of Cooperation in Discovery, 10 Sedona Conf. J. 363, at 363 (2009 Supp.); Sedona Conference, The Case for Cooperation, 10 Sedona Conf. J. 339 (2009 Supp.); Waxse, J., Cooperation—What Is It and Why Do It?, XVIII Rich. J. L. & Tech. 8 (2012); Losey, R., Judge David Waxse on Cooperation and Lawyers Who Act Like Spoiled Children (2012); Losey, R., Ethics of Electronic Discovery (2012).
As background reference for attorney best practices in cooperation, in addition to the above referenced case and articles, look at the other materials developed The Sedona Conference® in connection with its Cooperation Proclamation and other related materials. See:
- The Sedona Conference® Cooperation Proclamation: Resources for the Judiciary, August 2011;
- The Sedona Conference® “Jumpstart Outline”, March 2011
- The Sedona Conference® Cooperation Guidance for Litigators & In-House Counsel, March 2011
- The Sedona Conference® Commentary on Proportionality, October 2010
- The Sedona Conference® Glossary: E-Discovery & Digital Information Management (Third Edition), September 2010
- Ken Withers, E-Discovery and Combative Legal Culture: Finding A Way Out of Purgatory, October 2008
Also see NYSBA Best Practices In E-Discovery In New York State and Federal Courts (2011) (Guideline 4 on cooperation; 5 on attorney’s Zubulake duty to know client’s IT system and confer about it at the 26(f) conference; 6 on Request for Production; 7 on Form of Production; and,13 on cost discussions and agreements).
Also See Seventh Circuit Electronic Discovery Committee Principles Relating to the Discovery of Electronically Stored Information (Rev. 08/01/2010):
Principle 1.02 (Cooperation). An attorney’s zealous representation of a client is not compromised by conducting discovery in a cooperative manner. 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.
Also see Suggested Protocol for Discovery of Electronically Stored Information, Maryland District Court Committee (2007); Default Standard for Discovery, Including Discovery of Electronically Stored Information, Delaware District Court Committee (2011); Guidelines for Discovery of Electronically Stored Information Kansas District Court (2008).
Also see Northern District of California’s Guidelines for the Discovery of Electronically Stored Information:
Guideline 1.02 (Cooperation). The Court expects cooperation on issues relating to the preservation, collection, search, review, and production of ESI. The Court notes that an attorney’s zealous representation of a client is not compromised by conducting discovery in a cooperative manner. Cooperation in reasonably limiting ESI discovery requests on the one hand, and in reasonably responding to ESI discovery requests on the other hand, tends to reduce litigation costs and delay. The Court emphasizes the particular importance of cooperative exchanges of information at the earliest possible stage of discovery, including during the parties’ Fed. R. Civ. P. 26(f) conference.
The following additional topics are also important for meaningful Cooperation:
Relevancy Dialogues. See EDBP on Predictive Coding. Also See Eg. Da Silva Moore v. Publicis Groupe, _ F. Supp. 2d _, 2012 WL 607412 (S.D.N.Y. Feb. 24, 2012) (approved and adopted in Da Silva Moore v. Publicis Groupe, 2012 WL 1446534, at *2 (S.D.N.Y. Apr. 26, 2012)).
16(b) Hearings. Unless there has been a full and complete discussion, and agreement has been reached on all issues (which is currently a rare occurrence), a 16(b) hearing should be requested. Counsel should at least begin discussion of the issues with the judge and, where appropriate, seek an early ruling.
Requests for Production, Metadata, and Form of Production. Requests for production should include ongoing communications between the parties to clarify the intent of the requests. Also issues concerning metadata and format of production should be discussed and agreement reached prior to the actual production. To quote the Seventh Circuit Principles Relating to the Discovery of Electronically Stored Information, Principle 1.03 (Discovery Proportionality):
“To further the application of the proportionality standard in discovery, requests for production of ESI and related responses should be reasonably targeted, clear, and as specific as practicable.”
Seventh Circuit Principles Relating to the Discovery of Electronically Stored Information, Principle 2.01(a)(3) states:
“The formats for preservation and production of ESI and documents should be discussed and agreed upon.”
Countering Non-Cooperators. For the foreseeable future all attorneys endeavoring to cooperate will encounter opposing counsel from time to time who follow old school scorched earth tactics, or other less extreme forms of uncooperative behavior. Non-cooperation can and should be countered by a variety of strategies. Capitulation is never a best practice. First, document all non-cooperation that you encounter. Send confirmatory emails and the like. Keep a careful and accurate record of the facts. Put your offers in writing so that your cooperative efforts are documented too. Second, do not hesitate to bring this behavior to the attention of the court before it gets out of hand. Consider for instance, the Seventh Circuit Principles Relating to the Discovery of Electronically Stored Information, Principle 2.01(d):
“If the Court determines that any counsel or party in a case has failed to cooperate and participate in good faith in the meet and confer process, or is impeding the purpose of these Principles, the Court may require additional discussions prior to the commencement of discovery, and may impose sanctions, if appropriate.”
U.S. District Court Judge Paul Grimm has a Standing Order on Discovery for his court that includes a specific Cooperation requirement at Paragraph 3. This Order provides teeth to the general requirement:
“The failure of a party or counsel to cooperate will be relevant in resolving any discovery disputes, including whether the Court will permit discovery beyond Phase 1 Discovery and, if so, who shall bear the cost of that discovery. Whether a party or counsel has cooperated during discovery also will be relevant in determining whether the Court should impose sanctions in resolving discovery motions.”
Even if your judge does not have a specific order like Judge Grimm, you will likely find they agree with Judge Grimm and will, like him, be open to sanctioning the non-cooperator in egregious cases.
Early Motion Practice. With or without cooperation on both sides it is sometimes impossible to resolve all discovery issues. It is a best practice to bring all such disputes to the attention of the court as early as possible, Again citing the Seventh Circuit Principles Relating to the Discovery of Electronically Stored Information, Principles 2.01(b), 2.04(e):
“Disputes regarding ESI that counsel for the parties are unable to resolve shall be presented to the Court at the initial status conference, Fed. R. Civ. P. Rule 16(b) Scheduling Conference, or as soon as possible thereafter.”
Settlement, Mediation and Special Masters. As an alternative, or sometimes in conjunction with motion practice, attorneys should attempt to resolve disputes by settlement or other alternative dispute resolution procedures. The help of mediators and special masters is often an efficient way and reliable method to resolve discovery disputes, especially when they are complex and in large cases. They may also lead to the successful resolution of the entire case
More detailed descriptions of best practices for Cooperation in litigation will follow. In the meantime, if you have any suggestions and care to contribute to this project, or any questions (nothing case specific please), please leave a comment below.