Cooperation in discovery is often misunderstood as a sign of weakness. However, it is a strategic strength that benefits all parties involved. By fostering a collaborative approach, lawyers can save time, reduce costs, and maintain their reputations. This article explores the historical context, the legal framework, and the practical benefits of cooperation in discovery.

Yesterday I read a post by eDiscovery Today’s Doug Austin about frustration that Illinois Magistrate Judge Jeffrey Cole experienced with the lack of cooperation between the parties in Fleury v. Union Pac. R.R. Co., No. 20 C 390 (N.D. Ill. April 15, 2024). Doug posed a question to the audience: “So, what do you think? Can you understand why the Court was frustrated with the lack of cooperation?” Yes, Doug, I do. Judges will understand the frustration of Judge Cole, and trial lawyers should too.

Judge Cole, a gentleman and jurist of good temperament, was less harsh than I would have been under the circumstances. Needless waste of money, time, and court resources should always be called out. Failure to cooperate on clearly justified discovery requests, without rancor, obfuscation, foot-dragging, delay, and deception, is not only required by the rules but is also in the best interest of the client and the administration of justice. Timely hearings and case resolutions are becoming increasingly difficult due to overly complicated discovery.

But satisfying the judge is not the only reason a cooperative path through discovery is the best path. The benefits for both lawyers and clients are manifold.

Historical Context: The Sedona Conference’s Role

In 2008, The Sedona Conference issued its Cooperation Proclamation, advocating for a collaborative approach to discovery. In 2009, the storied organization laid out the Case for Cooperation. The Case for Cooperation, 10 The Sedona Conference Journal 339 (Fall Supp. 2009). For many years, increasing cost of discovery was seriously burdening the judicial system and parties fueled by the proliferation of electronic evidence. A coordinated effort was launched to promote cooperation by parties in the discovery process to better achieve a “just, speedy, and inexpensive determination of every action.” The topic of cooperation between adversaries was not without controversy. But discovery was never meant to be confrontational. More importantly, good reasons abound for opposing parties to exchange information without undue delay and get on with resolving the case.

Sedona’s dialogue at meetings of The Sedona Conference Working Group on Electronic Document Retention and Production (WG1) led to outlining two layers of cooperation according to their paper on the Case for Cooperation. The first layer was defined by ethical considerations, Federal procedure rules, and common law. The second level was an enhanced and practical version of cooperation involving the self-interest and mutual benefits of the parties and counsel in solving discovery problems and reaching solutions together in order to traverse the increasingly complex and difficult problems of electronic discovery more efficiently and economically. Achieving the client’s goals faster and establishing goodwill with the opponent and the court were additional benefits.

It did not take long for judges to recognize the value of the principles behind the Cooperation Proclamation. In Gipson v. Southwestern Bell Telephone Co., 2008 U.S. Dist. LEXIS 103822 *4 (D. Kan. Dec. 23, 2008) more than 115 motions and 462 docket entries were filed in less than a year. Judge David Waxse noted that many of the motions filed by counsel addressed matters that the parties should have resolved without judicial involvement. Reminding the lawyers and parties that the Court and parties have an obligation to administer the Federal Rules of Civil Procedure in a “just, speedy and inexpensive” manner pursuant to Rule 1, Judge Waxse then directed counsel to read the Cooperation Proclamation to help the parties and counsel understand their discovery obligations. 2008 U.S. Dist. LEXIS 103822 at *4.

Many state and federal judges embraced the Case for Cooperation and signed on to the Cooperation Proclamation. Notwithstanding the good sense and propriety behind cooperation and its acceptance among the judiciary, some lawyers clung to the old school advocacy of fighting over every issue, even in discovery. More needed to be done.

Shift in the Rules: Rule Amendments and Key Judicial Endorsement

The 2015 amendments to the Federal Rules of Civil Procedure further emphasized the need for cooperative discovery, making it clear that cooperation is essential for the just, speedy, and inexpensive determination of actions.

Rule 1 was amended to specifically state that parties and not just the court bear responsibility to employ the rules to “secure the just, speedy, and inexpensive determination of every action and proceeding”. Fed. R. Civ. P. Rule 1. The Committee Notes to the 2015 Rule 1 amendments provide that “Effective advocacy is consistent with — and indeed depends upon — cooperative and proportional use of procedure.” The clear signal from the Committee was that cooperation is needed to comply with Rule 1. The onus is on the parties and counsel to secure the just, speedy, and inexpensive determination of the action.

In the State of the Judiciary Year End Report, Chief Justice Roberts put an exclamation point on the shift to cooperation in the rules:

The amendments may not look like a big deal at first glance, but they are. That is one reason I have chosen to highlight them in this report. For example, Rule 1 of the Federal Rules of Civil Procedure has been expanded by a mere eight words, but those are words that judges and practitioners must take to heart. Rule 1 directs that the Federal Rules “should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” The underscored words … express the obligation of judges and lawyers to work cooperatively in controlling the expense and time demands of litigation—an obligation given effect in the amendments that follow. The new passage highlights the point that lawyers—though representing adverse parties—have an affirmative duty to work together, and with the court, to achieve prompt and efficient resolutions of disputes. (emphasis in original).

Chief Justice John Roberts, 2015 Year-End Report on the Federal Judiciary.

Judges quickly embraced the 2015 amendments. However, we are some sixteen years past delivery of the Cooperation Proclamation and nine years since the 2015 Federal Rule amendments, the volume and complexity of electronic evidence that needs to be processed and exchanged in discovery has exponentially increased with no end in sight, but we still have lawyers and clients acting like it is the 1980’s. Believe me. I was there. It was counterproductive then, and it is even worse now.

Practical Benefits: Cost Reduction and Stress Management

Cooperation involves mutually reasonable transparency and minimizes gamesmanship, which cuts costs, reduces stress, and enhances reputations. It allows legal professionals to focus on substantive issues rather than procedural battles, leading to more efficient case resolutions.

Failing to deal with discovery efficiently and honestly in cooperative fashion hurts the lawyers themselves and their clients and diminishes the court’s ability to be there in timely manner when needed. Lawyers and their clients are better served when applying their time, money, and brainpower fighting the issues that need their attention, not the thwarting the exchange of information that will have to be provided anyway.

Lawyers who resist cooperation are hurting their reputation with judges and peers. Good lawyers zealously protect their reputation with the court and other lawyers. Judges and lawyers talk to each other about those who they encounter, good and bad. If the conduct is highlighted in an opinion like the Fleury case, the whole world sees it. A reputation for square dealing goes a long way in credibility in court, at mediation, and in arbitrations. Why scuttle a chance for meaningful negotiation on important matters by arguing over production of something the court will require to be produced? It makes no sense and renders every encounter with the opponent more difficult.

A hidden but highly significant benefit to cooperative tactics is the health of the lawyers involved in the case. Practicing law is inherently stressful. Adding needless battles over discovery only increases this burden. As a trial lawyer for 24 years starting in 1977, I felt at times like I was in a pressure cooker. But lawyers practicing in today’s accelerated atmosphere fueled by text messages, emails, and expectations of immediate responses at all hours have it worse. By adopting cooperative tactics, lawyers can reduce stress and improve their well-being. Take it from someone who has experienced the trial lawyer life: the health benefits of minimizing stress can be lifesaving.

Debunking a Myth: Cooperation vs. Capitulation

I am not sure when I first heard the words “cooperation is not capitulation.” I recall for sure that they were spoken to me by the Founder of The Sedona Conference, the late Richard Braman, more than ten years ago on the eve of the first of many Cooperation in Negotiation training courses by The Sedona Conference. I was asked by The Sedona Conference to Chair the course, and I was in my room at the Wigwam in Phoenix for the program when Richard telephoned me to emphasize the significance of the first-of-its-kind training program. During Richard’s pep talk, he urged me to emphasize to the faculty and participants that lawyers who cooperate in discovery are not showing weakness and that “cooperation is not capitulation.” Those words rang true based on my experience as a lawyer and judge.

Consistency, candor, and professionalism are hallmarks of the most successful lawyers. Some of the fiercest lawyers I faced in court and encountered on the bench were cooperative with opponents in discovery. It is a sign of strength, not weakness. Cooperation works best when lawyers are prepared, they know their case and the rules, and they confidently offer what they are required to offer in order to encourage the opponent to do likewise. Those lawyers are successful, efficient, and cost-effective, which is why their clients love them. Sophisticated clients observe the behavior of their lawyers to determine whether their tactics are beneficial or counterproductive. Clients do not want to pay for needless bickering over nonissues, and they will not hire lawyers who practice that way.

The Path Forward: Embracing Cooperative Advocacy

Litigation is too costly and time consuming, and it is only getting worse. Costs and financial burdens of litigation are often perceived as greater than the reasonable benefits of a successful litigation, which erodes the opportunity for justice to be served. Our civil justice system must adapt to manage increasing volumes of electronic information. Cooperation is the key to controlling discovery costs and ensuring timely justice. By embracing cooperation, lawyers can achieve better, more efficient outcomes and uphold the integrity of the judicial system. Our advocacy must adapt, or justice will be delayed or denied.

Conclusion

Discovery cooperation is favored by judges and parties to civil litigation because cooperation saves, rather than increases, litigation discovery costs, reduces litigation risks, and increases cost predictability. Cooperation is not capitulation. It is a strategic approach that enhances the legal process and benefits all parties involved. By embracing cooperation, lawyers not only achieve better outcomes for their clients but also uphold the integrity of the judicial system. Credibility is gained and maintained through frank and transparent handling of discovery obligations.

Dedication: I would like to dedicate this piece to Ken Withers at The Sedona Conference for all the work he has done and continues to do to improve legal systems here and abroad. Ken was an invaluable resource to me when I first started teaching eDiscovery in the Florida Judicial Colleges more than 20 years ago and has continued to help me many times over the years. The Sedona Conference, its staff, and many volunteers have contributed much toward their goal of “moving the law forward in a reasoned and just way.” The Cooperation Proclamation and its progeny are truly among the top efforts that august group has put forth.