Published on Jul 14, 2016 
The ideal of cooperation by opposing parties to address eDiscovery has been around for a while now. Since the The Sedona Conference Cooperation Proclamation
called for “cooperative, collaborative, [and] transparent discovery” in 2008, adversarial cooperation has been touted among the judiciary and certain
practitioners as the key to success in proportional discovery. And yet, most litigants still believe that such cooperative advocacy is unreasonable,
imprudent, or even impossible. Given such resistance, how can clients and counsel be convinced to adopt a more cooperative approach to discovery in
litigation?
There is a solution to this problem: Presumptive limits, negotiated by the parties at the beginning of discovery.
The Dilemma of Cooperation
Even when parties wish to cooperate, a lack of trust in the other side often prevents it. Requesting and producing parties must each come to the
negotiating table prepared to give something up in order to achieve efficient discovery.
From the perspective of requesting parties, they must give up the right to ask for everything relevant to their case. However, until they know what the
other side has, how can requesting parties commit to only asking for some things and not others? What if the producing party is not fully transparent,
either through ignorance or design, about the data that is available? The requesting party faces the risk of forfeiting its rights to important relevant
information without ever fully knowing what it has given up.
The producing party faces its own problems in cooperation. It must disclose details about all of the data under its control, including information that the
requesting party will need in order to decide the importance of each source. This task is not only labor intensive, but it often feels to the producing
party that a Trojan Horse has been rolled into the gates of its city. Once the requesting party knows about all the data sources, it is equipped to argue
why all of those sources are important and should be produced. The requesting party can also audit the production to make sure it contains everything it
believes should have been produced. Moreover, the producing party will likely need to defend its decision for anything deemed “missing”.
Given the vulnerabilities that each side must expose in order to cooperate, it’s no wonder that many attorneys dismiss cooperation as unrealistic and
undesirable.
The Remedy
A solution to this seemingly intractable problem lies in presumptive limits. For interrogatories, attorneys are accustomed to presumptive limits, as they
are capped at 25 by the Federal Rules of Civil Procedure. It’s time to similarly introduce limits to requests for production, which is the aspect of
discovery that needs it most.[1]
Presumptive limits for eDiscovery have already been employed successfully by U.S. District Judge Paul Grimm. Judge Grimm’s Standing Order limits requests for
production to 10 custodians going back in time for a maximum of five years. It also limits the time attorneys may spend on eDiscovery to 160 hours. Another
example of presumptive limits includes a Model Order for eDiscovery in patent cases issued by the Federal Circuit Advisory Council. That order places presumptive limits on requests for emails, number of custodians (five custodians for emails), and number of keyword search terms.[2]
Because there is no “right” set of limits, most courts have not yet embraced strict rules for their use and application. However, parties can use their
experience in similar types of cases to negotiate presumptive limits that are proportional for the case, before engaging in discussions about specific
data. For example, parties in a large class action may agree that 30 custodians are needed; in a smaller employment dispute, only three may be needed.
The problem of cooperating without presumptive limits is that both sides must risk giving something up, without knowing what they will get in return.
However, when parties first negotiate presumptive limits appropriate to their case, everyone wins. A requesting party gains needed comfort that it will
learn about what the producing party has. It will also be able to focus its discovery efforts on the most highly relevant sources. The requesting party
therefore has an incentive to agree to limit how much it can request.
In like manner, producing parties gain comfort that they will not be required to produce everything responsive. Also, they know that they will need to
produce beyond the presumptive limits if the requesting party initially picks “wrong” sources for production based on misrepresentations or omissions from
the producing party. The producing party is therefore incentivized to ensure the requesting party gets what it needs.
Do It Yourself: A Model Order
Presumptive limits involve a multistep process, and it goes like this:
A Model Order that you can use to achieve this process is available here from the Legal Technology Professionals. [3]
“Presumptive Limits” vs. “Tiered Discovery”
If presumptive limits seem drastic for a particular case, this same model can be followed, substituting tiered discovery with corresponding calendar dates.
When using tiered discovery in this way, the object is not simply to get the best evidence produced first and keep going; it is to allow the parties time
to digest each wave of evidence to evaluate their cases and how much additional evidence is really necessary. It must provide enough “space” between tiers
of discovery that producing parties are motivated to cooperate, based on expectations that the case may settle or change between tiers, and it may never
get to the end of the schedule that would require it fully comply with all discovery requests.
[1]
Earlier drafts of the 2015 FRCP amendments would have limited parties to 10 interrogatories, and limited requests for admission to 25. Although those
proposals were rejected due to strong objections, this is because one-size-fits all limitations inherently fail to be proportional and appropriate for all
types of cases. For an example of presumptive limits that incorporate proportionality, see Utah’s Rules of Civil Procedure. They apply different limits in
discovery to cases with alleged damages of less than $50,000, $50,000 to $300,000, and greater than $300,000. The limits apply to fact deposition hours,
interrogatories, requests for production, requests for admission, and time to complete discovery.
[2]
That order has been used in cases such as DCG Systems, Inc. v. Checkpoint Technologies, 2011 WL 5244356 (N.D. Cal. Nov. 2, 2011) to curtail the
often unreasonably broad scope of discovery in patent matters.
[3]
I am a member of this drafting team.
