Venturing down memory lane to when I was a first year law student with a thirst for knowledge, I’m reminded of the proverbial “Aha!” moment that struck me when all the information I’d been learning about distinct areas of law started to blend together. For the first time, I had a sense of how our overarching justice system actually functions in one related universe. Even within ediscovery, the topics we feel are discussion-worthy—evidentiary rules, computer forensics, costs, sanctions, and tech phenomena like social media or BYOD—can seem hard to place on one relatable plane.
It’s easy to dismiss in passing that the word “cooperation,” although it appears in ediscovery opinions touching all of these subjects, only serves as a friendly reminder or precedes the occasional slap on the wrist. But let’s leave the mushy stuff off the table—I’ve learned that if there is one go-to method to drive down ediscovery costs across disciplines, it’s cooperation. Below, I want to share three compelling incentives for cooperating early with opposition, and why cooperation is almost always better than crying foul over minor ediscovery procedural disputes.
Hammer out, and get approved, a Fed. R. Evid. 502 clawback agreement
Judge Waxse and Ralph Losey have spoken at length about the importance of clawback agreements, with the former allegedly opining that failing to enter into one could be sufficient grounds for attorney malpractice. The basic fact is that just as man and machine will probably never be able to perfectly separate what’s relevant from what’s not, the same holds true for identifying and isolating privileged information—mistakes happen and they always will. While this does incentivize proper vendor selection, it also stresses the importance of carving out an escape plan. Sans party agreement, parties must show they took “reasonable steps” to prevent disclosure, among other requirements found in Fed. R. Evid. 502(b) in order to recoup mistakenly produced privileged documents. However, parties can modify these requirements, or eliminate them altogether, if they arrive at a properly worded Fed. R. Evid. 502 clawback agreement before discovery begins.
Avoid being squelched about search when disputes arise later
When one party fails to meet and confer, despite the mandates of Fed. R. Civ. P. 26(f)(3), courts have frequently voiced dismay when ruling over future discovery requests raised by that party. In the context of search, if a proactive producing party solicits the requesting party for input over its tentative search protocol (whatever form(s) of technology assisted review it might involve), the requesting party has an incredible incentive to speak up. In In re National Association of Music Merchants, Musical Instruments and Equipment Antitrust Litigation, the plaintiffs failed to suggest any search terms to be used in the defendants’ search when prompted by the defendants in their early attempt to meet in confer. When the plaintiffs later argued that the defendants’ unilaterally chosen search terms failed to capture all responsive electronically stored information (ESI) because they didn’t accommodate for acronyms and abbreviations appearing in the data set, the court was quick to deny the plaintiffs’ motion asking the defendants to re-search ESI with key words which included these terms. If there is such a thing as “cooperation” case law, perhaps the general rule that emerges is that requesting parties get one bite of the apple for offering search input to producing parties, who are afforded deference over their search methodology and bear the burden of certifying a complete production under Rule 26(g). As shown by this illustrative case, when requesting parties don’t chime in after being engaged by a producing party attempting to meet and confer, the entire apple may be left for opposition.
Avoid discovery about discovery
When the defendants’ discovery efforts were brought under fire by the plaintiffs in Ruiz-Bueno v. Scott, the court was forced to decide whether it would force defendants to produce answers to interrogatories aimed at finding out how they conducted ediscovery. Let me make this crystal clear: the plaintiffs were asking the court to order the defendants to answer “what procedures or methods were used” for search—information that should have been discussed in a meet and confer that never happened. The main lesson of this case: failure to cooperate is costly. The court here awarded the sought after “discovery about discovery” after calling it exactly that, because it had to resolve the (non-)issue.
That’s my $.02 on the issue of cooperation, but more importantly I want your feedback: what are the incentives that compel you to cooperate or not cooperate early with opposition about ediscovery?