You have survived Step 1 and Step 2, and you are now ready to produce ESI to your opposing counsel. But before you do, there are some things to consider about cooperation with counsel. While it may not seem there is anything about cooperation worth discussing, think again. Attorneys will try the court’s patience by failing to cooperate with one another, necessitating motion practice over discovery about discovery. The last place you want to be is standing before a judge explaining that you were unable to agree with opposing counsel on how to exchange ESI. Judges do not look fondly upon attorneys who can’t get along.
Thus, cooperation is of the utmost importance, and it happens best when you actually talk to your opposing counsel. Here are the things to consider when striving for cooperation:
- Relevancy Dialogues
- 26(f) Conferences
- 16(b) Hearings
- RFPs, Metadata & Form
- Countering Non-Cooperators
- Early Motion Practice
- Settlement, Mediation & Special Masters
Cooperation and proportionality
The concept of cooperation as it relates to e-discovery best practices can best be summed up by the words of a familiar voice, Judge Shira Scheindlin, in her 2011 opinion National Day Laborer Organizing Network v. United States Immigration and Customs Enforcement Agency:
Once again, this Court is required to rule on an e-discovery issue that could have been avoided had the parties had the good sense to “meet and confer,” “cooperate” and generally make every effort to “communicate” as to the form in which ESI would be produced. The quoted words are found in opinion after opinion and yet lawyers fail to take the necessary steps to fulfill their obligations to each other and to the court. While certainly not rising to the level of a breach of an ethical obligation, such conduct certainly shows that all lawyers – even highly respected private lawyers, Government lawyers, and professors of law – need to make greater efforts to comply with the expectations that courts now demand of counsel with respect to expensive and time-consuming document production. Lawyers are all too ready to point the finger at the courts and the Rules for increasing the expense of litigation, but that expense could be greatly diminished if lawyers met their own obligations to ensure that document production is handled as expeditiously and inexpensively as possible. This can only be achieved through cooperation and communication.
There is not much more commentary needed except to stress communication as the means to cooperation. Additionally, courts encourage attorneys to conduct discovery with an eye toward proportionality. The proposed amendment to Rule 26 of FRCP places proportionality in the forefront:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the amount in controversy, the importance of the issues at stake in the action, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
What cooperation and proportionality look like in practice is a subject of much debate. In reality, these concepts aren’t very difficult to understand; however, employing these concepts will require a change in the way lawyers practice. And we know how much lawyers like change… Because of this reality, it is important to first have this discussion about the importance of cooperation and proportionality. Then, we can discuss the ways in which attorneys can apply cooperation and proportionality to their practice.
In order to apply these concepts in your practice, you must first conduct the activities in the litigation readiness and preservation phases of the best practices model. Only when you are armed with this information can you have an educated discussion with opposing counsel about exchanging relevant ESI. Similarly, the goal of proportionality can only be reached once you understand your ESI, the opposing party’s custodians who likely have relevant information, and the role of ESI in your particular case. You achieve this knowledge through proper preservation – custodian interviews, meeting with IT and instituting hold notices. Then, you apply proportionality in practice by tailoring your discovery requests to the specific case. Ask for only that information that is relevant, available, and not burdensome to recover. Remember, do not ask for anything you are not willing to produce yourself. And most importantly, throw away the boilerplate discovery.
The meet & confer
With these two concepts in mind, one of your first chances to test your knowledge about your ESI will be the meet and confer. Before walking blindly into the meet and confer, you should have assembled your litigation team. Remember your duty — to provide efficiencies and cost savings. Therefore, know the technology that is available to you. Be prepared to discuss these issues with opposing counsel, including retaining an expert to handle the forensic collection, agreeing on search terms to limit the data collected, using predictive coding, and reviewing documents in a hosted review tool. Consider sharing in the cost of available technology and forensic experts.
Before the meet and confer, outline your road map and prepare to discuss the following: preservation; systems that contain discoverable ESI; search and production; phases of discovery; protective orders; and opportunities to reduce costs and increase efficiencies. Because you have prepared, these topics should be easy to discuss. You will know the necessary questions to ask opposing counsel and more importantly, you will have the answers you need to properly prepare for discovery and estimate the time needed. The more you can cooperate with your opposing counsel, the more you will keep costs down and succeed in achieving efficient discovery. To that end, the more prepared you are at the outset, the easier it will be cooperating with opposing counsel.
The court will thank you for doing all of this work when it comes time for the Rule 16 scheduling conference. Further, you will likely avoid costly motion practice, or discovery about discovery if you keep communicating with counsel. If issues do arise, consider an e-discovery special master or mediator to assist with complicated e-discovery matters.
Although e-discovery can be extremely complicated, it can also be distilled down to simple steps if you approach it with the requisite knowledge and the right attitude. Remember, the keys to successful e-discovery are preparation, communication, cooperation and proportionality.