Cooperation Checklist from the Experts

With all the talk about the importance of cooperation in the electronic discovery process, it is interesting to see a checklist of items which some experts believe come within the ambit of "cooperation". At a recent Fios webinar, the faculty (Richard Braman of Sedona; retired magistrate now law school dean John Carroll; and Fios consultants Kenneth Rashbaum and Mary Mack) offered several examples of cooperation (a list which is, of course, by no means all inclusive):

* Exchanging information with opposing counsel on relevant data sources, including those not being searched;
* Scheduling early disclosures on the topics of ESI
* Joint development of search and retrieval methodologies
* Early identification of (and agreement upon) forms of production
* Development of case-long discovery budgets based upon proportionality principles
* Using court appointed experts, mediators or formal ADR programs to resolve discovery disputes
* Using in-house or third party "experts" to assist the attorney in drafting discovery requests and preparing responses (presumably to make sure the requests and responses are properly targeted and technologically correct.

The Sedona Conference Cooperation Proclamation probably is now becoming required reading for litigators, given its widespread endorsement. However, checklists like the foregoing from the Fios presenters really advance the cause by putting some specifics on the process.

Establishing an E-Discovery Protocol

I have long advocated the importance of successfully reaching agreement on an electronic discovery protocol early in the litigation process as a means of avoiding disputes down the road and minimizing risks of sanctions. A well crafted, comprehensive protocol can go a long way toward eliminating disputes over form of production, search terms, scope of search and even preservation obligations.

E. Kendrick Smith and Robin A. Schmahl, writing in the Fulton County Record, have provided a good checklist of considerations for protocol negotiations in their article "How to Get an E-Discovery Protocol Rolling" published earlier this month and reproduced at Law.com. Their concluding thought says it well:

Discovery protocols work best when the attorneys do their respective homework and cooperate with each other early in the discovery process. If done thoughtfully and in good faith, entering into such a protocol can drastically reduce costs and streamline discovery. It is a litigator's best tool for managing electronic discovery and avoiding discovery disputes.

To their comments I would add one additional thought: Lawyers must ensure that they fully understand the systems and technology they will be dealing with, both for e-discovery support and at the client's site. In other words, the lawyers must know what they are to be talking about in the protocol negotiations.

Cooperation a Matter of Lawyer Ethics?

Michael Berman, associate editor of the ABA's Litigation News publication, argues that cooperation in e-discovery is an ethical obligation of lawyers. (His article, "Give Peace A Chance," appears in the Winter 2009 issue of Litigation News at p. 25.) Berman draws his context from the oft-chronicled decision in Mancia v. Mayflower Textile Services, U.S. Dist. LEXIS 83740 (D. Md. Oct. 15, 2008) and, in addition, from The Sedona Conference's Cooperation Proclamation.

This blogger has no argument with the thesis of Mr. Berman's article. While the ethical rules impose a duty on each of us attorneys to zealously guard the rights of our clients, there is a parallel duty to the process. Once there is recognition that cooperation is consistent with zealous representation, perhaps lawyers will be more willing to beat their swords into plowshares and together plow the fertile ground that awaits those who work together toward a common goal of justice.