by Dennis Kiker – Director, Professional Services, Fios, Inc.
I’ve noticed a theme in many of my conversations with outside counsel recently when the topic of the Sedona Cooperation Proclamation comes up. First there is a tightening around the mouth and the eyes narrow just a bit. It is not dissimilar to the look my daughters would give me when I asked whether they had tried talking it over with the person that was mad at them. Just a momentary thing, but there was that flash that said, “Yes, I know this is what I should be doing, but you really don’t understand what my life is like, do you?” Cooperation in litigation is a little like that. And, to be honest, if I bring up the same topic while looking in a mirror, I would likely see something of the same expression.
It’s a little like criminal defense to me. I am a true believer in the principle that every accused defendant has a right to a vigorous defense, and I am comfortable with the concept that, in our system of justice, it is better that a guilty man go free than an innocent man be punished. I believe in that. I just can’t do it. There are people that I simply could not provide a zealous defense, so I leave that to better people than me. The same analogy applies in my mind to the Cooperation Proclamation. I believe in it conceptually. I will even advocate for it in presentations. But, as a practical matter, it is more difficult to act on it than to believe in it. For example, just how cooperative are we supposed to be? If the opposing party does not ask for any information about my client’s computer systems or backup tapes, am I supposed to offer up that information anyway? Or, if opposing counsel is just clueless about e-discovery, must I educate him so that he can better represent his client’s interests, or do I protect my client’s interests by pressing my advantage?
I realize this is a situational issue. In symmetrical litigation with competent and informed counsel and parties on either side, cooperation not only makes good sense, it is likely to happen anyway. But in asymmetrical litigation (as in the product liability cases of my past), there is a definite incentive to follow the “don’t ask, don’t tell” policy on certain issues. Particularly when the opposing side has little incentive to cooperate – or rather, little incentive to cooperate reasonably, as in, “sure, come on in and look at my client’s laptop, and we’ll just send our guys over to look at your data center next week.” Geography even plays a part. In Hampton County, South Carolina, or down in the South Texas “valley,” cooperation can be pretty hard to come by. I know many attorneys who still, and quite reasonably in my view, take the position that they will provide the minimal information possible in a Rule 26(f) conference. If confronted with opposition that just doesn’t understand e-discovery, and therefore is unable to effectively negotiate the scope of production, they feel no need to help that attorney do his or her job.
On the other hand, I am one of those who believes that, one day, e-discovery will be as routine as paper discovery is today. Everyone will have a basic understanding of the issues, and cooperation will be easier and more routine. The Sedona Cooperation Proclamation is an important and meaningful benchmark on the road to that day. But we are not there yet.