In a prior post we noted that those seeking to achieve proportionality in the face of objection by an opponent, or a court’s lack of experience, should begin with the rules. The good news is that there is no shortage of case law applying doing just that. In other words, a party seeking to force cooperation in the face of opposition has access to a number of tools to support that advocacy.
A high percentage of recent e-discovery decisions turn on the failure of the parties to discuss and address issues early on in litigation. Whether the dispute involves the appropriateness of keyword searching, form of production or the scope of discovery, judges are responding with a largely uniform theme: do not bring me disputes that could have (and should have) been addressed by meaningful discussions that the rules envision (and require) the parties to have.
While many judges already understand the importance of cooperation under the amended Federal Rules of Civil Procedure, in advocating that the parties take the meet and confer process seriously and craft a meaningful discovery plan or, at least, identify key disputes before discovery commences, an advocate can point to the experiences and words of judges who have faced the unsavory and unwanted task of resolving disputes that would not have occurred had there been cooperation.
For example, in SEC v. Collin & Aikman Corp., Judge Shira Scheindlin addressed a series of discovery disputes including one arising out of the government’s refusal to discuss a possible approach to keyword searching. Judge Scheindlin invoked the Sedona Conference Cooperation Proclamation and noted: “With few exceptions, Rule 26(f) requires the parties to hold a conference and prepare a discovery plan. . . . Had this been accomplished, the Court might not now be required to intervene in this particular dispute.”
In Covad Communications Co. v. Revonet, Magistrate Judge Facciola was asked to rule on the production format of e-mail even though it appeared the parties had never “discussed what form this (or any other) production should take.” Judge Facciola observed “it is a waste of judicial resources to continue to split hairs on an issue that should disappear when lawyers start abiding by their obligations under the amended Federal Rules and talk to each other about the form of production.” Judge Facciola ordered the parties to split the $4,000 cost of native production and privilege review, noting: “Two thousand dollars is not a bad price for the lesson that the courts have reached the limits of their patience with having to resolve electronic discovery controversies that are expensive, time consuming and so easily avoided by the lawyers’ conferring with each other on such a fundamental question as the format of their productions of electronically stored information.”
An advocate might also invoke the cautionary tale of Gipson v. Southwestern Bell Telephone. Co. in which Magistrate Judge David Waxse faced a docket of “more than 115 motions and 462 docket entries” in a case less than a year old. He observed that many of these motions “addressed matters that the Court would have expected the parties to be able to resolve without judicial involvement.” Judge Waxse pointed the parties to the Cooperation Proclamation:
This Court’s goal, in accordance with Rule 1 of the Federal Rules of Civil Procedure, is to administer the Federal Rules of Civil Procedure in a “just, speedy and inexpensive” manner. To assist the Court in accomplishing this goal, the parties are encouraged to resolve discovery and other pretrial issues without the Court’s involvement. To help the parties and counsel understand their discovery obligations, counsel are directed to read the Sedona Conference Cooperation Proclamation, which the Court has previously endorsed.
And consider Aguilar v. Immigration & Customs Enforcement Division of the U.S. Department of Homeland Security, in which Magistrate Judge Frank Maas had to address a late dispute over the production of metadata. Judge Maas summarized his experience and all that could have been avoided by early cooperation on e-discovery:
This lawsuit demonstrates why it is so important that parties [fully] discuss their ESI early in the evolution of a case. Had that been done, the Defendants might not have opposed the Plaintiffs’ requests for certain metadata. Moreover, the parties might have been able to work out many, if not all, of their differences without court involvement or additional expense, thereby furthering the “just, speedy, and inexpensive determination” of this case. See Fed. R. Civ. P. 1. Instead, these proceedings have now been bogged down in expensive and time-consuming litigation of electronic discovery issues only tangentially related to the underlying merits of the Plaintiffs’ . . . claims.
And more recently, in Kleen Products LLC v. Packaging Corporation of America, Magistrate Judge Nan Nolan addressed a series of motions to compel in a major class action lawsuit. Her opinion, which also invoked the Sedona Cooperation Proclamation, began with an emphatic statement on the importance of cooperation among parties in litigation:
Lawyers have twin duties of loyalty: While they are retained to be zealous advocates for their clients, they bear a professional obligation to conduct discovery in a diligent and candid manner. Their combined duty is to strive in the best interests of their clients to achieve the best results at a reasonable cost, with integrity and candor as officers of the court. Cooperation does not conflict with the advancement of their clients’ interests—it enhances it. Only when lawyers confuse advocacy with adversarial conduct are these twin duties in conflict.
These cases and others allow the proportionality advocate to make the points that should be meaningful to any court: (1) the failure to enforce the early attention requirements early in litigation will lead to future problems that are avoidable; (2) those future problems will spawn discovery disputes and sanctions motions that will increase the workload of the court and waste judicial resources; (3) future disputes will come at the expense of a “just, speedy and inexpensive determination” of the merits of the case.