Cooperation Isn’t Just About Search Protocols

Last summer, the Sedona Conference issued their Cooperation Proclamation in reaction to what they termed “an unprecedented crisis” in the litigation arena. Specifically the Sedona Cooperation Proclamation (SCP) said that: “The costs associated with adversarial conduct in pre-trial discovery have become a serious burden to the American judicial system. This burden rises significantly in discovery of electronically stored information (”ESI”). In addition to rising monetary costs, courts have seen escalating motion practice, overreaching, obstruction, and extensive, but unproductive discovery disputes – in some cases precluding adjudication on the merits altogether – when parties treat the discovery process in an adversarial manner. Neither law nor logic compels these outcomes.” 

 Since then we have had a great deal of discussion about what cooperation means. In Mancia v. Mayflower Textile Servs. Co., 2008 WL 4595175 (D. Md. Oct. 15, 2008), Magistrate Judge Grimm held that “[c]ourts repeatedly have noted the need for attorneys to work cooperatively to conduct discovery, and sanctioned lawyers and parties for failing to do so”, specifically referring to the SCP.

He went on to say that: “Perhaps the greatest driving force in litigation today is discovery. Discovery abuse is a principal cause of high litigation transaction costs. Indeed, in far too many cases, economics-and not the merits-govern discovery decisions. Litigants of moderate means are often deterred through discovery from vindicating claims or defenses, and the litigation process all too often becomes a war of attrition for all parties.”

More recently, in Securities and Exchange Commission v. Collins & Aikman Corp., 2009 WL 94311 (S.D.N.Y., Jan. 13, 2009) Judge Schira Scheindlin found that the SEC’s “blanket refusal to negotiate a workable search protocol” was “patently unreasonable” citing both Mancia and the SCP. 

“Rule 26(f) requires the parties to hold a conference and prepare a discovery plan. … Had this been accomplished, the Court might not now be required to intervene in this particular dispute. I also draw the parties’ attention to the recently issued Sedona Conference Cooperation Proclamation, which urges parties to work in a cooperative rather than an adversarial manner to resolve discovery issues in order to stem the ‘rising monetary costs’ of discovery disputes.”

Now in both these cases, as well as several other that have come down since last fall, the focus is on the challenges of search techniques and the need to confer and agree on search protocols including but not limited to, sampling. As Judge Scheindlin said in SEC v Collins: “The concept of sampling to test both the cost and the yield is now part of the mainstream approach to electronic discovery.”

But amidst all this talk of search protocol agreement and data sampling, it seems to me we have an opportunity to pursue a part of the SCP that is often overlooked.  Paragraph 2 of the SCP states:

“With this Proclamation, The Sedona Conference® launches 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.  This Proclamation challenges the bar to achieve these goals and refocus litigation toward the substantive resolution of legal disputes.”   (emphasis added)

It seems to me we need more discussion about those “practical tools” which will then push the ability to cooperate.  And to me the biggest tool for this effort is the web hosting of litigation documents.  We already have web based applications which allow the posting and sharing of documents. I myself have used these services on several large cases and found them a crucial tool for not only cutting costs but quickly and easily disseminating information to both sides of a case, which then allows quicker progress of the entire action.

 

I’ll be discussing exactly this issue during a webinar hosted by Anacomp’s CaseLogisitx on Wed April 29th. Entitled “How To Purchase Litigation Support Software”,  the session will focus specifically on what tools you need to have in order to adhere to the recommendations of the SCP.  Given the ongoing endorsement of those principles by jedges across the country, this will be a timely disucssion aimed at the nuts of bolts of what you should do to get the best lit support applciation for your needs.  For more info and to sign up, go to the CaseLogistix web site .

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