Cooperation, proportionality and efficiency. Oh my!
One of the first lessons we are taught as a child is how to share. Unfortunately, for decades, the opposite has been drilled into litigation professionals. Judicial patience has worn thin and judges have taken it upon themselves to re-teach lawyers the crucial lesson of cooperation. In Alford v. Rents, the court did not hesitate in making two attorneys personally liable for a monetary fine of $3,750 for a “conscious effort to maximize litigation” and making it as “unpleasant and expensive as possible.” Indeed, the exasperated warning of the court in B&B Hardware, Inc. v. Fastenal Co., that parties stop behaving as “armed combatants” and more like “professionals”, is no longer an aberration but rather common.
It was with concerns in mind such as these that the United States District Court for the District of Kansas appointed the Rule 1 Task Force who recently published new guidelines for ediscovery. The Task Force, a committee of three lawyers and two federal judges, is dedicated to strengthening Rule 1 of the Federal Rules of Civil Procedure which calls for litigation to be handled in a “just, speedy, and inexpensive” way. While the guidelines are not binding, lawyers would do well to follow them.
In an introduction aimed at highlighting the importance of cooperation in the new guidelines, the Task Force explicitly endorsed the Sedona Conference Cooperation Proclamation and noted that they have already been adopted by seven Kansas judges. Throughout the guidelines, the Task Force bade counsel to “engage with opposing counsel in a respectful, reasonable, and good faith manner.” The Task Force also recognized that the discovery of ESI “is unduly expensive if not managed properly.” Therefore, they recommended that counsel become knowledgeable about client’s information management systems before the discovery conference so they can effectively discuss the storage and retrieval of the ESI. The guidelines also noted that the parties should presume that the producing party will bear all costs for “reasonably accessible ESI” and that there will be cost-shifting for ESI that is not reasonably accessible.
The guidelines do not endorse any one method of reviewing documents, but the Task Force did point out that the proportionality principle must be considered and parties must confer and agree on a “reasonably specific protocol for retrieving and producing ESI.” With this in mind, the Task Force recommended that the parties agree on a neutral vendor and/or use one search protocol to reduce costs, noting, “an attorney’s representation of a client is improved by conducting discovery in a cooperative manner.
Whether or not your practice or docket brings you to litigate in the land of Dorothy and Oz, Kansas’ new approach to ediscovery will likely serve as a template for other jurisdictions across the country. To keep up on ediscovery developments in Kansas and other jurisdictions across the United States, visit the ediscovery Local Rules & Statutes guide. Further, for more information on cooperation and the ethical challenges of ediscovery, check out a recent presentation Ethical Challenges in Ediscovery.