Discovery Resources

by Conrad J. Jacoby, Esq.

In July 2008, The Sedona Conference®, a non-profit legal think tank well-known for its Sedona Principles regarding preservation and production of electronically stored information in civil litigation, released The Sedona Conference® Cooperation Proclamation.  In it, the Conference suggests that overly aggressive (e.g., “scorched-earth”) discovery tactics reflect a misunderstanding of lawyers’ duty to provide effective advocacy for their clients. Instead, the Proclamation calls on lawyers to work more collaboratively during the discovery phase so that greater time and attention (and money) can be spent on litigating the merits of the underlying dispute. 

The Cooperation Proclamation challenges lawyers to rethink their litigation roles and strategies.  The Proclamation notes that lawyers have a duty “to strive in the best interest of their clients to achieve the best results at a reasonable cost, with integrity and candor as officers of the court.”  Proclamation at 1.  Costs associated with the preservation, review, and production of electronically stored information (“ESI”) have made headlines for some time, but these costs are a by-product of a discovery trend, not the cause of the trend itself.  Litigants have used aggressive discovery for years to add complexity or to increase the settlement value of a case.  However, by noting that the costs of aggressive discovery are overburdening courts, not just litigants, the Cooperation Proclamation takes a clear position that modern discovery practice runs the real risk of compromising a lawyer’s obligation to support the American justice system. 

The Proclamation cites state and Federal Rules of Civil Procedure as support for greater cooperation between litigants.  The 2006 amendments to the Federal Rules, variations of which have now been adopted by at least twelve states for their courts, require parties to meet and confer on a variety of discovery topics.  In most jurisdictions, parties bringing motions for discovery relief must also certify that they have attempted to resolve differences between the parties “in good faith” prior to seeking a judicial ruling.  The Proclamation suggests that these rules already promote—if not require—significant cooperation between the parties during fact discovery, even if courts have not always insisted on clear evidence of such behavior.  New rules should not be needed when greater compliance with the spirit (not just the letter) of existing rules could make a vital difference.

The Proclamation also directly addresses the argument that cooperation with opposing counsel is inconsistent with a lawyer’s duty to be a zealous advocate for his or her clients.  The Proclamation suggests that some lawyers confuse adversarial conduct with advocacy, and it challenges practitioners to analyze their own actions for evidence of both.  Adversarial conduct, of course, supports oppositional behavior regardless of the situation and regardless of whether the client receives any benefit from the behavior.  Advocacy, in contrast, accepts that successful client representation should include conserving client resources whenever appropriate, even if that means adjusting and compromising some logistics of case development—if the moves save the client money and do not impede development of the client’s legal case. 

Conclusion

In a typical litigation matter today, the average litigant spends over 70% of its budget on discovery and discovery-related motion practice and less than 30% on substantively developing its legal case.  In big-ticket litigation that involves millions of potentially relevant discovery documents, discovery may consume an even larger percentage of the total litigation budget, especially for the parties producing these materials.  However, discovery costs fall on both sides: litigants receiving voluminous discovery materials must also incur substantial costs to analyze the materials they have requested if they hope to mine them for supporting evidence. 

The Sedona Conference Cooperation Proclamation argues that a new culture of greater cooperation would benefit all litigants—even in matters that have a significant mismatch in client resources—by speeding resolution of cases on their merits.  That culture runs contrary to the way that many cases have evolved, and the Proclamation itself notes, “there remain obstreperous counsel with no interest in cooperation, leaving even the best-intentioned to wonder if ‘playing fair’ is worth it.”  Proclamation at 2. 

It will be fascinating to see the impact of the Cooperation Proclamation.  For the near term, even The Sedona Conference® itself has only modest expectations:  “[S]uccess will not be instant.”  Proclamation at 3.  However, as of September 30, 2008—less than sixty days after the Proclamation was first issued—twenty-four state and federal judges had already endorsed the document and its sentiments.  Many more judges have since read the Proclamation, and endorsements continue to stream in.  The Sedona Conference® estimates that it will have over one hundred (100) judicial endorsements by the end of 2008, and at least one recent opinion, Mancia v. Mayflower Textile Servs. Co., 2008 WL 4595175 (D. Md. Oct. 15, 2008), has already cited the Proclamation with strong approval.  Lawyers presenting a case before any judge who has endorsed this latest Sedona Conference project would do well to keep the Cooperation Proclamation in mind—and closely at hand.

About the Author

Conrad Jacoby is the founder of efficientEDD, a consultancy specializing in electronic discovery and litigation information management issues. A seasoned litigator as well as a technology consultant, Mr. Jacoby writes and speaks extensively on electronic discovery issues. He received his undergraduate degree, magna cum laude, from Yale University and received his law degree, cum laude, from the Georgetown University Law Center. He can be reached at conrad@efficientEDD.com.

Filed under Case Law & Rules, Featured Articles, From the Experts, Home Page Featured, Sedona, Standards & Best Practices.

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