Published on Jun 27, 2014 << Read Part 2: Top 5 e-Discovery Bad Habits You Should Break
The Sedona Conference Cooperation Proclamation has now been around for over five years, been endorsed by judges in at least 30 states plus the District of Columbia, and has been cited in dozens of opinions by judges wishing to make discovery efficient and civil. In other words, it’s at your own risk that you disregard the Proclamation’s principle that “Cooperation in discovery is consistent with zealous advocacy.”[1] Failure to cooperate can increase your risk of sanctions, as courts become more frustrated with these old-school tactics and the attorneys who engage in them.[2] On the other hand, parties who cooperate may find a more lenient court if a mistake or dispute arises later.[3]
Despite a trend toward cooperative discovery, some attorneys continue to try to draw blood from the opposing party during discovery. Operating under a “everything for us, nothing for you” strategy, they serve and demand complete compliance with sweeping discovery requests, without engaging in discussions or phased discovery to focus on what they really need. Attorneys still frequently respond to requests with pages of boilerplate objections and blatantly attempt to stonewall opposing parties from any discovery.
To break this bad habit, arrive at your 26(f) conference prepared to have an honest and open discussion about discovery. If you are not comfortable discussing technology and data systems, bring someone who is. Your goal should be to establish an effective plan specific to the data sources at both companies, and identify points of disagreement for the judge to resolve later. The key to identifying points of disagreement is that the parties must share enough information they can explain why data is likely or not likely to be responsive, any why the data is or is not too burdensome. It is likely that some issues will require more than one discussion, so you might even consider holding some discussions ahead of the formal 26(f) meet-and-confer.
[1] The Sedona Conference, The Sedona Conference Cooperation Proclamation (July 2008), available at https://thesedonaconference.org/cooperation-proclamation.
[2] See, e.g., Ruiz-Bueno, III v. Scott, 2013 WL 6055402 (S.D. Ohio Nov. 15, 2013) (warning that the court may impose sanctions if the parties did not cooperate); Tadayon v. Greyhound Lines, Inc., 2012 WL 2048257 (D.D.C. June 6, 2012) (“There is a new sheriff in town – not Gary Cooper, but me. The filing of forty-page discovery motions accompanied by thousands of pages of exhibits will cease” and the parties would be required to cooperate).
[3] See In re National Ass’n of Music Merchants, Musical Instruments and Equipment Antitrust Litig., 2011 WL 6372826 (S.D. Ca. Dec. 19, 2011) (rewarding defendant that cooperated on establishing search terms by denying plaintiff’s motion to add more terms later).
Do you have a great memory? Unless you can remember what you had for breakfast every day for the last six months, you need to document each and every decision and action as you move along your discovery journey towards compliance. When something goes wrong in discovery, attorneys who do not carefully document their process frequently rely on emails and notes jotted into a legal pad to piece together the story of who did what and why.
If your discovery compliance is ever challenged, the opposing party may argue –with the benefit of 20/20 hindsight – that you and/or your client should be sanctioned for a bad result. Fortunately, the standard for determining whether sanctions apply is not focused on the result –although the result may factor into the severity of sanctions if there are any. The standard is whether the attorneys made a reasonable inquiry.[1] As you know, “reasonableness” depends on the circumstances of a situation. This means that if discovery efforts are challenged, an attorney must argue that he made a reasonable inquiry in context of the situation. So, the focus will be on the exact facts surrounding the situation, and what the attorney did. Each day of discovery, where multiple decisions may be made and available information may change, so it would be difficult to recall the exact situation that created the basis for each decision.
Therefore, if every step is correctly documented, you have the best chance of showing your actions were reasonable, given the case needs and information known at the time. Even better, you will have the credibility of a contemporaneous record from the time the issue arose. Without such a record, attorneys may find it difficult to prove that their efforts were reasonable if it turns that there is a bad result.
[1] ABA Model Rule of Professional Conduct 3.4 provides that an attorney shall not “fail to make a reasonable diligent effort to comply with a legally proper discovery request by an opposing party”). Federal Rule of Civil Procedure 26(g) requires an attorney to sign discovery responses and the commentary explains that the Rule
does not require the signing attorney to certify the truthfulness of the client’s factual responses to a discovery request. Rather the signature certifies that the lawyer has made a reasonable effort to assure that the client has provided all the information and documents available to him that are responsive to the discovery demand.
In addition, Federal Rule of Evidence 502 provides some protection for privileged information that was inadvertently produced if the lawyer “took reasonable steps to prevent disclosure” and attempted to timely retrieve the information.
Other Articles in this Series:
Top 5 e-Discovery Bad Habits You Should Break, Part 1
Top 5 e-Discovery Bad Habits You Should Break, Part 2
Top 5 e-Discovery Bad Habits You Should Break, Part 4
Top 5 e-Discovery Bad Habits You Should Break, Part 5
