There is a tension in the American Legal system today between the need for cooperation amongst parties to reduce the cost and length of e-Discovery, and the adversarial approach to litigation that most attorney’s feel is their obligation. Here is a brief look at a few cases of late that deal with the theme of co-operation particularly in the context of e-Discovery disputes, in the hopes we can all learn a bit more about balancing this tension.

Motion Denied!

Jeremy Dider v Abbott Laboratories Magistrate Judge James P. O’Hara

In this case the defendant continually produced additional documents after the deadline for specific discovery requests.  The Plaintiff tried to argue that the defendant was not cooperating and moved to compel discovery of additional documents she thought might exist, and moved for rather severe sanctions too. The defendants had documented reasons for each late production supplementation, and so the court was not impressed with the complaint, responding that it “…cannot compel a party to produce documents that do not exist or are not in that party’s possession, custody, or control. Plaintiff has not provided the court with information sufficient to lead the court to question the veracity of the defendants’ statement that no additional responsive documents exist.” Judge O’Hara denied the sanctions as well, calling them “drastic” and stating that the “…plaintiff is asking for far too much based on far too little.”
A stinging warning ended the body of the order, calling on the parties to re-evaluate their approach:

“The parties are strongly encouraged to communicate and cooperate with each other before involving the court again. In the future, the court will not hesitate to impose sanctions on anyone who engages in conduct that causes unnecessary delay or needless increase in the costs of litigation, including frivolous discovery motions.”

Motion… oooh that’s a toughie, ask me again later

Worley v. Avanquest North America Inc Magistrate Judge Laurel Beeler

In this case, the defendant offered to preserve and produce ESI created during “…the entire period covered by the statute of limitations,” which was the previous 5 years. The Plaintiff asserted that relevant ESI existed within Avanquest’s control, ESI which went back an additional 10 years beyond this 5 year period. Plaintiff claimed that producing that much ESI would constitute undue burden, stating that the costs would outweigh any likely benefit.  However, the court stated that there was no indication of specific costs in Avanquest’s response, and that they “ …must identify custodians likely to have relevant information during the time period requested by Plaintiffs, consult a person with expertise (such as an IT employee) and specify any undue burden associated with preservation, and produce non-burdensome, relevant information.”
Therefore the motion wasn’t quite denied, but rather put on hold for later review once more information was produced by the defendant. Since Avanquest was totally cooperative in producing ESI within the first 5 years, this might have opened up consideration for them to further explain their objection.

Motion, um…. actually you guys are gonna have to handle this

Fort Worth Employee’s Retirement Fund v J.P. Morgan Chase Magistrate Judge James C. Francis IV

Sometimes cooperation is the only answer in the eyes of the court. In this complicated eDiscovery dispute, the Defendants used over 80k search terms generating 875k hits of relevant documents. However, the plaintiff said this scope was far too narrow for the nature of the case, and moved to compel additional discovery. The defendant responded saying that the adjustments requested in their search terms would produce over 11 million documents, a number far too high to be considered proportional. The court agreed with the plaintiff, saying there was likely more relevant information not touched on by the original search terms used, but 11 million documents also seemed problematic. So, the court basically ordered them to cooperate and figure it out:

“Given the nature of this request and the complexities of crafting a search protocol, a court-ordered middle ground is impractical and inappropriate… I urge the parties to reexamine their positions and work together in good faith to create a mutually acceptable ESI search regime.”

Of course, the judge did give them a deadline and an alternative resolution:

“If discussions between the parties do not yield a compromise by January 10, 2013, I will appoint a special master with expertise in the field of electronic discovery to review this order and the parties’ positions and recommend a search protocol. The parties would share the cost of the special master.”

Motion Granted!

Ruiz-Bueno v Scott – Magistrate Judge Terrence P. Kemp.

The plaintiff was not happy with the defendant’s discovery response, and so effectively filed a motion to compel discovery about their discovery process. The defendant claimed that such a production was a) outside the ‘scope’ of discovery determined by FRCP 26 (b)(1) and also that their discussions about discovery strategy was protected under the attorney-client privilege.  The court decided that such a request was in fact within the scope of discovery as defined by the FRCP in this case, although specifying that “…not every case will justify directing counsel or a party to provide discovery about discovery.”  In regards to the claim of privilege, the court pointed out that “…there is a vast difference between describing, factually, what a party has done to comply with a document request, and revealing discussions between counsel and the client about that process.” The motion to compel was granted.
In looking at the role of the parties’ cooperation in this order, the Judge clearly states that one of the reasons for the motion to be granted was “… the fact that defendants were less than forthcoming with information needed to make further discussion of the issue a collaborative rather than a contrarian process…”, noting that a collaborative attitude towards discovery is “… completely consistent with the lawyer’s duty to represent the client zealously.” Here is an even more explicit statement by the court, perhaps expressing its impatience at a scenario that should never have come to pass in the first place:

“In an ideal world (a situation which apparently does not exist here), these types of disputes would never be presented to the Court because counsel would have recognized, early in the case, the potential for disagreements about proper search protocols, and would have actively sought to avoid such disagreements through collaboration… Here, by contrast, it appears that defendants have been reluctant to share any of that information with plaintiffs.”

So try to get along…

It’s clear even in this brief overview of four cases, whether on the side of the plaintiff or the defendant, cooperation goes beyond just saving on costs for the client. There are serious benefits that can advance your case and put you in a preferred position in the eyes of the judge. For a great in-depth walkthrough on cooperation in litigation, please see Judge David Waxse’s excellent article entitled Cooperation: What Is It and Why Do it?