Why Even the Most Cutthroat Lawyer Should Want to Cooperate
Litigants are rarely genuinely interested in cooperation during litigation. Litigation is, after all, an adversarial proceeding where one side hopes to win while the other side loses. In some instances, it seems like the competitive spirit overshadows any collaboration between litigants, their attorneys and their opponents.
Despite this, lawyers are doing their clients a disservice when they fail to endorse a collaborative attitude with regard to ediscovery. Following the Sedona Conference® Cooperation Proclamation, judges and courts are stressing the importance of collaboration throughout the ediscovery process. For example, see the following excerpts from 2014 judicial opinions encouraging cooperation and collaboration in ediscovery:
- “[T]he time to tap flexibility and creativity is during meet and confer, not after.” Boston Scientific Corp. v. Lee, No. 5:14-mc-80188-BLF-PSG, 2014 WL 3851157 (N.D. Cal. Aug. 4, 2014).
- To accommodate the plaintiff’s demand for the full forensic output of both personal and professional laptops would “encourage litigants to demand the moon thinking they can always fall back to something reasonable. They should be reasonable from the start.” Boston Scientific Corp. v. Lee, No. 5:14-mc-80188-BLF-PSG, 2014 WL 3851157 (N.D. Cal. Aug. 4, 2014).
- The court’s order demanding plaintiffs respond to interrogatories about ediscovery methods was “based, at least in part, on…the fact that defendants were less than forthcoming with information needed to make further discussion of the issue a collaborative rather than contrarian process.” Ruiz-Bueno III v. Scott, No. 2:12-cv-0809, 2013 WL 6055402 (S.D. Ohio Nov. 15, 2013).
- “If the parties had worked with their ediscovery consultants and agreed at the onset of this case to a predictive coding based ESI protocol, the court would not hesitate to approve a transparent mutually agreed upon ESI protocol.” Progressive Casualty Insurance v. Delaney,No. 2:11-cv-00678-LRH-PAL, 2014 WL 2112927 (D. Nev. May 20, 2014).