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We have long seen general principles of discovery inform the development of the law in the realm of electronic discovery. With Magistrate Judge Paul Grimm’s recent decision in Mancia v. Mayflower Textile Services Co., 253 F.R.D. 354 (D. Md. 2008), however, we now see that the lessons of e-discovery have the potential to spur enhancements in overall discovery practices. Regular readers are by now familiar with Grimm’s work. From his bench in the U.S. District Court for the District of Maryland he has provided some of the most important rulings on e-discovery of the last few years,[FOOTNOTE 1] and we have not hesitated to pass along his wisdom.[FOOTNOTE 2] His latest opinion in the field, however, has even broader implications. On Oct. 15, Magistrate Judge Grimm issued an opinion in Mancia that sends all attorneys engaged in discovery a message that we have been preaching with respect to electronically stored information for years: Advanced knowledge of the data in your control and cooperation with your adversary will get you everywhere. What makes Mancia notable, however, is that it suggests such cooperation, in addition to reflecting best practices, may be mandated by the Federal Rules. This ruling may come as a surprise to attorneys who have dealt primarily with “traditional” paper discovery. But for those who are familiar with the Federal Rules regarding e-discovery, and the procedures and practices that have developed thereunder, it appears Magistrate Judge Grimm has simply taken the lessons learned from dealing with ESI and translated them to broader discovery practice. The claim in Mancia and the conduct at issue are both fairly pedestrian. A group of employees filed a purported collective action against their employers under the Fair Labor Standards Act of 1938 and Maryland state law for violations of statutory wage and overtime pay requirements. Plaintiffs initiated discovery and served interrogatories and document requests on the defendants that, judging from the excerpts cited by the court, seem fairly typical. For example, plaintiffs sought to acquire all documents reflecting agreements between Mayflower Textile Services Co. and two of its co-defendants, an employment service and consulting firm. The various defendants responded to many of the discovery requests with what the court described as “boilerplate, nonparticularized objections,” such as the following:

Objection. This request is overly broad and unduly burdensome, and is not reasonably calculated to lead to the discovery of material admissible in evidence at the trial of this matter in that it contains no time limitation whatsoever, and clearly seeks documents outside of the limitations period governing this action.

In ruling on plaintiffs’ subsequent motions to compel discovery, the court held that the defendants’ objections were wanting because they failed to particularize the grounds on which they were based. The court also suggested, sua sponte, that the plaintiffs’ discovery requests may have been excessive or unduly burdensome given what the court perceived to be the modest monetary value of the claim. At oral argument on the motions to compel, the court instructed the parties to meet and confer in order to share estimated “worst case” and “best case” damage scenarios for the claim, as well as expected attorney’s fees. This way, the parties could assure that the breadth and depth of discovery was proportional to the amount at stake in the claim, with the burden remaining on the defendant to show undue burden if it existed. Finally, the court suggested that the parties consider phased discovery, in which the most relevant, but least burdensome, data could be exchanged first, followed by the production of a narrower range of documents from other sources. In making these specific rulings on the parties’ moving papers, Grimm embarked on a detailed discussion of the bases for his opinion. He concluded that the Federal Rules require that the parties make a reasonable inquiry into the propriety of every discovery request, objection, or response, and furthermore, that they must actively cooperate during the discovery process. The court based the first part of its ruling on the text of FRCP 26(g), which requires by its terms that an attorney sign every discovery paper submitted during the litigation. This signature acts as a certification that the attorney has conducted a “reasonable inquiry” prior to submitting it, and has determined that the discovery request or response is consistent with the rules of procedure and governing law; not interposed for an improper purpose, and is not unreasonable or unduly burdensome or expensive. Failure to comply with Rule 26(g) is grounds for sanction.[FOOTNOTE 3] The court also held that underlying the entire discovery process is a requirement that the parties and lawyers involved in litigation cooperate throughout. Mancia quotes extensively from courts and legal scholars discussing the adversary system and explains that its nature does not preclude, but indeed requires, collaboration between the parties to reveal and develop the facts underlying their dispute. In particular, the adversary system requires litigants to cooperate in discovery so that cases can be resolved efficiently through settlement, summary disposition, or trial. And, in this vein, the court highlighted a promising initiative upon which the Sedona Conference recently embarked. ‘COOPERATION PROCLAMATION’ The Sedona Conference is a nonprofit, educational research institute best known for publishing the highly influential Best Practices Recommendations and Principles for Addressing Electronic Document Production.[FOOTNOTE 4] In its latest initiative, perhaps motivated by its work in the e-discovery field, the Sedona Conference has issued a Cooperation Proclamation to announce “a national drive to promote open and forthright information sharing, dialogue (internal and external), training, and the development of practical tools to facilitate cooperative, collaborative, transparent discovery.”[FOOTNOTE 5] Given this context, the court found that the parties failed to fulfill their discovery obligations in two respects. First, by making boilerplate objections with little or no factual specificity, the defendants violated their obligation to conduct a reasonable inquiry in response to plaintiffs’ discovery requests. If they had conducted such an inquiry, they presumably would have been able to either produce the information requested or provide the plaintiffs with the particularized objections required by the Federal Rules.[FOOTNOTE 6] Second, by exchanging overly broad discovery requests and generalized responses, the parties failed to cooperate in the manner required by the Federal Rules, relevant statutes, and their ethical obligations to the court and to the profession. Grimm’s opinion in Mancia makes clear that he has learned much from his encounters with e-discovery over the years. The requirements that he identifies as implicit in the law with respect to all discovery are explicit under the Federal Rules with respect to e-discovery. They should be familiar to any lawyer who has had to produce electronic data to, or request it from, an adversary. For example, FRCP 26(b)(2)(B), which was added to the Federal Rules as part of the 2006 amendments pertaining to electronic discovery, explicitly sets the tone for e-discovery that Judge Grimm establishes in Mancia regarding all forms of discovery. That rule states that a party need not produce electronic data “from sources that the party identifies as not reasonably accessible because of undue burden or cost.” This mirrors the requirement that Mancia sets for responses and objections to document requests: In order to determine what sources of information it is unable to produce, a party served with a request for ESI must undertake an investigation – or “reasonable inquiry” — of its electronic databases, assess the expense and time associated with producing the information contained on them, and be prepared to tell its adversary, specifically, what its limitations in production are. DRIVING FORCE

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