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.

Seek and Ye Shall Find (Maybe)

Kudos to George Paul and Tom Gilson for a thoughtful article on the pitfalls of search term strategies in electronic discovery, entitled "Seek and Ye Shall Find?" The article provides a useful checklist of precautions including negotiations with your adversary, documenting your decisions, testing your terms and exploring alternate technologies to validate your search.

Studies have demonstrated that no set of search terms is guaranteed to retrieve 100 percent of all relevant documents. Of course, it is equally true that a manual (eyes-on paper) search isn't failsafe either. The best protection against sanctions when the missing missive eventually surfaces lies in reaching agreement with opposing counsel. Until we lawyers get past the gunslinger mentality (shoot anything that moves), reaching agreement can be a daunting challenge. The best chance of reaching agreement with opposing counsel lies in a mediated meet and confer or results from strong oversight from the bench.