Welcome to Module 1-D.
The Cooperative Approach to Discovery, Bob Dylan and Justice Breyer.
Cooperation is one of the basic pillars to e-discovery. The others are Teams, Metrics, and Education. Cooperation involves a culture change in the interaction of opposing counsel wherein they try to minimize adversarial conduct in discovery. This requires transparency of process, wherein some of the traditional secrecy rights of attorney work-product secrecy are waived, on a limited basis. Transparency in a cooperative model of discovery requires the producing attorney to disclose the steps they used, or plan to use, to find and produce the information requested. This new attitude towards discovery is particularly helpful to all parties involved in litigation where technical issues of e-discovery are concerned. This class discusses these issues, an encounter with Supreme Court Justice Breyer, and trial lawyers. Not only that, it uses the poetry of Bob Dylan as a teaching tool and allows students to express and share their opinions with polls. If you like Dylan, you should like this class.
Some attorneys mistake cooperation for capitulation. It is not. The instruction provided in this course is not based on principals of compromise at all costs, or on naive wishful thinking. It is based on hard experience and my over thirty years of litigation with some tough opposing counsel, and with adverse parties of all kinds, including some total lunatics. Cooperation as taught in this course means to avoid unnecessary fights based on a position of strength, namely knowledge of the e-discovery process. It is based on a clear understanding of what is fair and reasonable under the particular circumstances of the cases, and what is not. Cooperation is necessarily a reciprocal process and there will always be some opposing counsel who refuse to cooperate, whose notion of fairness means to agree to all of their unreasonable demands. In those situations it is necessary to seek relief from the court. It is necessary to fight. Also, sometimes view of a case by opposing counsel is so divergent that they cannot agree on what is reasonable. Despite good faith efforts and good will on both sides, they cannot agree. They agree to disagree. Again, the solution is to obtain guidance from the court. My view of cooperation requires a judiciary willing to step in when necessary and make some tough calls.
Finally, cooperation does not mean to forgive and forget the spoliation of evidence or other bad faith conduct of opposing parties in litigation. The entire fifth section of this course is devoted to sanctions law and practice. We must protect the integrity of our system of justice by punishing those who intentionally hide or destroy evidence. As an example of what I mean, take a look at episode four of Star Trek Meets e-Discovery: Spock Learns to Like e-Motions. This animation examines a real world incident of a prominent trial attorney alleged to have hidden an email from judge and jury.
Under the cooperative approach to discovery the parties work together to find the evidence, then argue over its importance or admissibility. The cooperation model is limited to discovery. It does not extend to issues concerning the merits of the case itself. The traditional models of adversarial conduct and work product secrecy remain in tact for all non-discovery related issues.
Even as to discovery, cooperation does not mean capitulation, but rather discussion and focusing of issues, along with good faith efforts to reach agreement. Failing that, when the parties agree to disagree, the cooperative approach advocates early resolution from the court on any such issues.
The cooperation pillar has its home in The Sedona Conference, namely the Sedona Cooperation Proclamation and Richard Braman. Read the proclamation linked above first, then watch this short video.
The Sedona Conference and the e-Discovery Team are not the only organizations promoting the doctrine of discovery cooperation as a means for protecting parties from excessive and over-burdensome e-discovery. Many judges in the state and federal system also recognize and embrace the doctrine. Can you imagine a judge who did not want parties to cooperate in discovery? This is what the judiciary has been saying for decades, but until recently has not been enforcing or, in our opinion, promoting actively enough. Judges today better understand the importance of cooperation, especially in electronic discovery. Consider for instance an article co-written by Judge Andrew J. Peck and practicing attorney, David J. Lender in 2011, 10 Key E-Discovery Issues In 2011: Expert Insight to Manage Successfully (Metropolitan Corp. Counsel, April 03, 2011). Their top ten tips for successful management begins with the mantra of cooperation:
The mantra that is being repeated more and more by courts as a means to reduce the costs of electronic discovery is cooperation.1 As one court explained, cooperation among counsel “will almost certainly result in having to produce less discovery, at lower cost,” and for requesting parties, “cooperation will almost certainly result in getting helpful information more quickly.”2
1 See, e.g., SEC v. Collins & Aikman Corp., 256 F.R.D. 403 (S.D.N.Y. 2009) (SEC’s refusal to negotiate a workable search protocol was “patently unreasonable”); William A. Gross Constr. Assocs., Inc. v. American Mfgrs. Mut. Ins. Co., 256 F.R.D. 134, 136 (S.D.N.Y. 2009) (“Electronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI.”). The Seventh Circuit currently is engaged in an electronic discovery pilot program to develop procedures to better manage electronic discovery. Cooperation among counsel is included in its guiding principles.
2 Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 365 (D. Md. 2008).
Bob Dylan, Justice Breyer and the Cooperation Proclamation
In a major coup for The Sedona Conference and electronic discovery specialists everywhere, Associate Justice Stephen Breyer of the United States Supreme Court has weighed in on e-discovery and written the preface to a special supplement of the Sedona Conference Journal, The Sedona Conference Journal, Vol. 10 Supplement, Fall 2009. Here is an excerpt from the Preface by Justice Breyer:
[The articles in this Supplement] suggest that if participants in the legal system act cooperatively in the fact-finding process, more cases will be able to be resolved on their merits more efficiently, and this will help ensure that the courts are not open only to the wealthy. I believe this to be a laudable goal, and hope that readers of this Journal will consider the articles carefully in connection with their efforts to try cases.
I also join in Justice Breyer’s urging that you consider the articles carefully and try to apply these principles in your efforts to try cases. You might also want to give a copy of the Journal to non-cooperative lawyer types. You know the ones; the old-school litigators who still think that discovery, especially e-discovery, is an exercise in hide-the-ball litigation tactics, and cooperation is what you pretend to do when the judge is looking. Anecdotal reports suggest that non-cooperator are still in the majority, but, as Bob Dylan said, the times they are a-changin’.
The Case For Cooperation
The Sedona Cooperation Proclamation is a brief document of only two and a half pages. It is well summarized by its conclusion which states:
It is time to build upon modern Rules amendments, state and federal, which address e-discovery. Using this springboard, the legal profession can engage in a comprehensive effort to promote pre-trial discovery cooperation. Our “officer of the court” duties demand no less. This project is not utopian; rather, it is a tailored effort to effectuate the mandate of court rules calling for a “just, speedy, and inexpensive determination of every action” and the fundamental ethical principles governing our profession.
Although the proclamation is short, it contemplated the later creation of more extensive writings, including this Journal, and its lead article, The Case for Cooperation, 10 Sedona Conf. J. 339 (2009 Supp.) The article was written by a group of Sedona contributors led by Bill Butterfield, an attorney with Hausfeld LLP in Washington D.C. The executive editors were Richard G. Braman and Kenneth J. Withers, both of The Sedona Conference®. The contributing editors were John D. Luken, Dinsmore & Shohl LLP; Charles R. Ragan, Huron Consulting Group; Christopher M. Schultz, Perkins Coie LLP; and, Gregory B. Wood, Fulbright & Jaworski L.L.P.
The Case For Cooperation provides a Brandeis brief type of argument for cooperation in the field of discovery, particularly electronic discovery, where costs can otherwise quickly spiral out of control. It delineates two levels of cooperation:
Cooperation in this context is best understood as a two-tiered concept. First, there is a level of cooperation as defined by the Federal Rules, ethical considerations and common law. At this level, cooperation requires honesty and good faith by the opposing parties. Parties must refrain from engaging in abusive discovery practices. The parties need not agree on issues, but must make a good faith effort to resolve their disagreements. If they cannot resolve their differences, they must take defensible positions.
Then, there is the second level. While not required, this enhanced cooperative level offers advantages to the parties. At this level, the parties work together to develop, test and agree upon the nature of the information being sought. They will jointly explore the best method of solving discovery problems, especially those involving electronically stored information (“ESI”). The parties jointly address questions of burden and proportionality, seeking to narrow discovery requests and preservation requirements as much as reasonable. At this level, cooperation allows the parties to save money, maintain greater control over the dispersal of information, maintain goodwill with courts, and generally get to the litigation’s merits at the earliest practicable time.
The Case For Cooperation is a well researched article with 159 footnotes. It provides an important reference of the laws and policies behind the Cooperation Proclamation. It is also a persuasive document to show to uncooperative types that their brand of zealous discovery, hurts rather than helps their clients. Section five of the article shows the benefits of cooperation, focusing on the economic incentives and strategic benefits. It also explains what cooperative discovery is and is not:
Cooperation in the discovery context does not mean giving up vigorous advocacy; it does not mean volunteering legal theories or suggesting paths along which discovery might take place; and it does not mean forgoing meritorious procedural or substantive issues. Cooperation does mean working with the opposing party and counsel in defining and focusing discovery requests and in selecting and implementing electronic searching protocols. It includes facilitating rather than obstructing the production and review of information being exchanged, interpreting and responding to discovery requests reasonably and in good faith, and being responsive to communications from the opposing party and counsel regarding discovery issues. It is characterized by communication rather than stonewalling, reciprocal candor rather than “hiding the ball,” and responsiveness rather than obscuration and delay.
Cooperation defined in this manner is not only largely compelled by the attorney’s obligation to comply with legal rules, ethical obligations and the professional rules of conduct, but it also offers the client the benefits of creating and maintaining credibility with the court and the opposition, enhancing the effectiveness of advocacy, and minimizing client costs and risks.
The Proclamation calls for a three-part process to implement a new cooperative approach to discovery summarized by the acronym ACT. The first step is Awareness, the second is Commitment, and the third is Tools. The first step of consciousness-raising was accomplished by the Proclamation itself and related publicity and announcements. The Case for Cooperation, and other articles in the Journal and elsewhere, are part of the second step of Commitment. This is described in the Proclamation as “Developing a detailed understanding and full articulation of the issues and changes needed to obtain cooperative fact-finding.” The third step, Tools, is the final stage that will continue for many years. The Cooperation Proclamation describes this activity as:
Developing and distributing practical “toolkits” to train and support lawyers, judges, other professionals, and students in techniques of discovery cooperation, collaboration, and transparency. Components will include training programs tailored to each stakeholder; a clearinghouse of practical resources, including form agreements, case management orders, discovery protocols, etc.; court-annexed e-discovery ADR with qualified counselors and mediators, available to assist parties of limited means; guides for judges faced with motions for sanctions; law school programs to train students in the technical, legal, and cooperative aspects of e-discovery; and programs to assist individuals and businesses with basic e-record management, in an effort to avoid discovery problems altogether.
The Tools stage is really a Schools stage. Information alone is a fine tool, but it is nearly worthless unless you know how to use it. The indispensable knowledge of how to use tools, especially sophisticated tools created by others as Sedona here contemplates, takes instruction, perseverance, and time. As Bob Dylan said: “If your time to you Is worth savin’ Then you better start swimmin’ Or you’ll sink like a stone For the times they are a-changin’.”
The Bull’s-Eye View of Cooperation in Discovery
The next article in the Journal was written by Professor Steven S. Gensler of the University of Oklahoma College of Law. It is entitled The Bull’s-Eye View of Cooperation in Discovery, 10 Sedona Conf. J. 363 (2009 Supp.). It discusses three different types of cooperation as illustrated in the graphic below and how they can all be part of an integrated strategy.
This article provides an academic, theoretical basis for the concepts of cooperation and related laws and policies. As Professor Gensler correctly notes:
The Cooperation Proclamation is exactly right when it urges lawyers to see cooperation as a means for advancing their clients’ interests and not as a retreat from their duties as loyal advocates. As I have written elsewhere, the lawyers who default to battle mode in discovery – who fail even to consider whether cooperation might yield better results – are the ones who truly fail to serve their clients’ interests.
These default mode discovery-battlers remind me of Bob Dylan’s one song that mentions both lawyers and professors, Ballad Of A Thin Man:
You walk into the room
With your pencil in your hand
You see somebody naked
And you say, “Who is that man?”
You try so hard
But you don’t understand
Just what you’ll say
When you get home
Because something is happening here
But you don’t know what it is
Do you, Mister Jones?
You’ve been with the professors
And they’ve all liked your looks
With great lawyers you have
Discussed lepers and crooks
You’ve been through all of
F. Scott Fitzgerald’s books
You’re very well read
It’s well known
Because something is happening here
But you don’t know what it is
Do you, Mister Jones?
It seems like many trial lawyers today are in the position of the fictional Mister Jones in Dylan’s song. They know something important is happening with the computerization of society and explosion of electronic information, but they don’t really know what it is. They may attend seminars and CLEs, and some may try hard, but still not know what they’ll say when they get home. That in large part depends on the quality of the CLEs, on whether the schools can really teach the tools. The failure of most CLEs is why Richard Braman founded The Sedona Conference and Ralph Losey started this online training program.
Mancia v. Mayflower Begins a Pilgrimage
to the New World of Cooperation
The last article in the Sedona Journal on Cooperation discusses the first twelve cases to cite the Sedona Cooperation Proclamation. It was written by Ralph Losey and is entitled Mancia v. Mayflower Begins a Pilgrimage to the New World of Cooperation, 10 Sedona Conf. J. 377 (2009 Supp.). The first opinion to cite and endorse the proclamation was Mancia v. Mayflower Textile Services. Co., 253 F.R.D. 354 (D.Md. Oct. 15, 2008) by Judge Paul W. Grimm. The next eleven opinions to follow Grimm in Mayflower were:
Aguilar v. Immigration and Customs Enforcement Div. of U.S. Dept. of Homeland Sec., 255 F.R.D. 350 (S.D.N.Y. Nov. 21, 2008).
Gipson, et al v. Southwestern Bell. Tel. Co., 2008 U.S. LEXIS 103822 (D.Kan. Dec. 23, 2008).
Covad Communications Co. v. Revonet, Inc., 254 F.R.D. 147 (D.D.C. Dec. 24, 2008).
S.E.C. v. Collins & Aikman Corp., 256 F.R.D. 403, Fed. Sec. L. Rep. P 95,045 (S.D.N.Y. Jan. 13, 2009).
William A. Gross Const. Associates, Inc. v. American Mfrs. Mut. Ins. Co., 256 F.R.D. 134 (S.D.N.Y. March 19, 2009).
Newman v. Borders, Inc., 257 F.R.D. 1 (D.D.C. April 6, 2009).
Ford Motor Co. v. Edgewood Properties, Inc., 257 F.R.D. 418 (D.N.J. May 19, 2009).
Dunkin’ Donuts Franchised Restaurants LLC v. Grand Cen. Donuts, Inc., 2009 WL 1750348 (E.D.N.Y. June 19, 2009).
Wells Fargo Bank, N.A. v. LaSalle Bank Nat. Ass’n, 2009 WL 2243854 (S.D.Ohio July 24, 2009).
In re Direct Southwest, Inc., Fair Labor Standards Act (FLSA) Litigation, 2009 WL 2461716 (E.D.La. Aug. 7, 2009).
Capitol Records, Inc. v. MP3tunes, LLC, 2009 WL 2568431 (S.D.N.Y. Aug. 13, 2009).
My article discusses these cases, most of which are already well known, and explains why the judges referred the parties to the Proclamation. I also show what the first cases have in common, aside from the obvious of uncooperative attorneys. These first cases primarily deal with technical disputes concerning form of production, metadata, and search protocols, mainly keyword lists. In my opinion, attorneys only squabble about such relatively inconsequential technical issues because they do not understand e-discovery. They know something is happening here, but they don’t know what it is.
They fight over form of production because they do not grasp that metadata is not really that important, and it is a waste of client money and court time to hide it. They also fail to do simple things, like decide what form of production they want when they make a production request, not afterwards.
They fight over search protocols because they really have no idea how to find the relevant needles in the vast collections of electronic haystacks that their clients foolishly maintain. Since they do not know what to do, they just propose keyword search terms. They pretend like e-discovery search is the same as a Google or Westlaw search because that is all they know. They then engage in foolish games of competing keyword lists that quickly lead nowhere.
The twelve cases that I write about are all sounding the chimes of cooperation, heralding the warriors whose strength is not to fight. As Dylan wrote in Chimes of Freedom:
Far between sundown’s finish an’ midnight’s broken toll
We ducked inside the doorway, thunder crashing
As majestic bells of bolts struck shadows in the sounds
Seeming to be the chimes of freedom flashing
Flashing for the warriors whose strength is not to fight
Flashing for the refugees on the unarmed road of flight
An’ for each an’ ev’ry underdog soldier in the night
An’ we gazed upon the chimes of freedom flashing.
I suspect that judge endorsements of Cooperation will go viral eventually. This is a trend you have to be part of. Create a new more cooperative identity when it comes to discovery, especially e-discovery. As Bon Dylan said in It’s Alright, Ma (I’m Only Bleeding): “He not busy being born, is busy dying.”
So, get your white-hat on now. You will win cases and influence counsel. Learn how to play the new game of cooperative discovery, or be branded as a bad guy tomorrow. If you work for an old paradigm law firm, help them to see the light. How many rulings do you think you will win in front of a proclamation sign-on judge who thinks you are a non-cooperator? As Dylan said in Drifter’s Escape:
“Oh, help me in my weakness,” I heard the drifter say, As they carried him from the courtroom And were taking him away. “My trip hasn’t been a pleasant one And my time it isn’t long, And I still do not know What it was that I’ve done wrong.”
Well, the judge, he cast his robe aside, A tear came to his eye, “You fail to understand,” he said, “Why must you even try?” Outside, the crowd was stirring, You could hear it from the door. Inside, the judge was stepping down, While the jury cried for more.
It is really not that hard to cooperate. Attorneys do it all of the time in areas where they know what they are doing. Pre-trial stipulations come to mind, as do evidence stipulations, not to mention mediations and other forms of ADR. But it is hard to cooperate on electronic discovery when you are not comfortable with the field and do not know what you are doing. For instance, you may not know if a particular issue or concession is important or not. When you do not know, you tend to treat everything as critical. Something is happening here, but you don’t know what it is. You are afraid of making a mistake that will cost your client. You are afraid of looking stupid. For those reasons, you object to everything your adversary wants. But in the process, your obstructionist behavior costs your client way more than any mistake could. It may even cost your client the whole case. The judge may ask you to explain, and you can’t, because you only know that something is going on, but not what it is. What do you have left then, when your reputation is gone? “The answer, my friend, is blowin’ in the wind, The answer is blowin’ in the wind.”
The path to cooperation is illuminated by competence. That is why the third phase, the Tools phase, is a Schools phase; it needs to include a comprehensive educational program. If a lawyer does not understand the e-discovery issues they are facing, then they should bring in special counsel who does. That is an ethical imperative. You have to know what is going on. When attorneys have the knowledge they need to understand the full dynamics of the issues, then, and perhaps only then, does cooperation come easily. That is why I leave you with this parting wish, that you may find the knowledge to stand upright, be strong, and cooperate. And, as the great Bob Dylan wished for us all:
May you grow up to be righteous,
may you grow up to be true.
May you always know the truth
and see the lights surrounding you.
May you always be courageous,
stand upright and be strong.
May you stay forever young.
READING ASSIGNMENTS. Be sure you have read the Sedona Cooperation Proclamation. Then read the following scholarly articles on The Cooperation Proclamation. This is a mandatory reading assignment for students going for testing and a diploma that certifies you have successfully completed this training program. This assignment is longer than most, but this module was short, and later modules will have less supplemental reading assignments, so that it all balances out. Information found only in these reading assignments will be included in the exams for this course. Once you have read all of this on Cooperation, think of two things that you like about the materials and agree with, and another two that you don’t.
The Sedona Conference®, “The Case for Cooperation,” 10 Sedona Conf. J. 339 (2009 Supp.)
Steven S. Gensler, “A Bull’s Eye View of Cooperation in Discovery,” 10 Sedona Conf. J. 363 (2009 Supp.)
Ralph C. Losey, “Mancia v. Mayflower Begins a Pilgrimage to the New World of Cooperation,” 10 Sedona Conf. J. 377 (2009 Supp.)
Ken Withers, “When Email Explodes,” San Diego Lawyer Magazine, p. 36-40 (November/December 2008).
More Introductory Reading. Cooperation is just one of the ten points covered in Judge Andrew Peck’s 10 Key E-Discovery Issues In 2011: Expert Insight to Manage Successfully. This short article provides a good over-view of the whole subject of e-discovery from one of the top judges in this field. Pick one of the other top-ten subjects addressed, aside from cooperation, that you find most interesting and do further research on it. Also, consider if you disagree with, or at least question, any of the statements made in the essay, and if so, why?
Discretionary Exercise: Come up with another Bob Dylan quote that is somehow appropriate to this subject. Go ahead and email Ralph (firstname.lastname@example.org) what lyric you picked and why. He likes that. It is amazing some of the great lyrics and applications that we have heard so far. You’d think Bob was writing about e-discovery!
Students are invited to leave a public comment below. Insights that might help other students are especially welcome. Let’s collaborate!
Copyright Ralph Losey 2015