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.

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.

Cooperation Enforcer: Discovery Master?

As the judicial theme for 2009 E-Discovery opinions becomes clear (e.g., Judge Facciola's keynote at Legal Tech stressing cooperation and competence) another trend is likely to emerge: the early appointment of a discovery master for complex ediscovery cases. A recent opinion by Magistrate Waxse (Gipson v. Southwestern Bell, 2008 U.S. Dist. LEXIS 103822) may be foreshadowing things to come. After renewing his endorsement of the Sedona Conference's Cooperation Proclaimation, Judge Waxse admonished the parties to confer on the appointment of a special master to "obtain agreed resolutions of disputed matters."

I believe the use of special masters will see increasing frequency in the months ahead as the parties struggle to come to grips with the new emphasis on cooperation. Litigators are not used to cooperating with opposing counsel and will find it difficult to take off their advocates robes to sit down and find common ground to make discovery speedy, efficient and economical while serving the needs of the parties.

From my own experience as a special master and as an advocate in many e-discovery battles from the meet and confer stage through countless sanctions motions, I believe there is real benefit to expanding the use of a discovery master to ensure the parties have an effective initial meet and confer BEFORE they become locked into discovery battles over spoliation, form of production, completeness and all the other issues leading to sanctions.

Time will tell.