CHAPTER 3: COOPERATION

 During the same time period that the original changes to the FRCP were being implemented, some complimentary efforts were being undertaken by the Sedona Conference (hereinafter Sedona), a nonpartisan law and policy think tank. Sedona published the first edition of The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Production in 2004 and the document became influential in the eventual recommendations of the FRCP advisory committee. The second amended version of The Sedona Principles was released in July of 2007 and a third edition was released in 2018, then updated in 2019.

On October 7, 2008, Sedona released its Cooperation Proclamation (hereinafter SCCP), endorsed by over twenty judges, including the Honorable Judges Shira Scheindlin, Andrew Peck, Paul Grimm, David Waxse, and John Facciola, all leading jurists in eDiscovery. The SCCP was designed to expedite reasonable, just, speedy, and less expensive approaches to e-Discovery mandated by Rule 1 of the Federal Rules of Civil Procedure. To that end, it hoped to shift the focus of the eDiscovery discussion from dis­covery disputes to litigating on the merits.

Their specific purpose was a reaction to what they termed “an unprecedented crisis” in the litigation arena where: “The costs associated with adversarial conduct in pre-trial discovery have become a serious burden to the American judicial system. This burden rises significantly in discovery of electronically stored information (ESI). In addition to rising monetary costs, courts have seen escalating motion practice, overreaching, obstruction, and extensive, but unproductive discovery disputes – in some cases precluding adjudication on the merits altogether – when parties treat the discovery process in an adversarial manner. Neither law nor logic compels these outcomes.” [1]

Judge Paul Grimm extolled the focus of the SCCP shortly after its publication in his memorandum opinion in Mancia v. Mayflower Textile Services Co., 253 F.R.D. 354, 358 (D. Md. 2008). Mancia was an employment liti­gation case in which the parties had reached a discovery impasse that did not even involve ESI. Judge Grimm wrote, however, that "courts repeat­edly have noted the need for attorneys to work cooperatively to conduct discovery, and sanctioned lawyers and parties for failing to do so." Mancia, supra, fn. 3.

Judge Grimm went on to write that "[p]erhaps the greatest driving force in litigation today is discovery. Discovery abuse is a principal cause of high litigation transaction costs. Indeed, in far too many cases, econom­ics—and not the merits—govern discovery decisions. Litigants of moder ate means are often deterred through discovery from vindicating claims or defenses, and the litigation process all too often becomes a war of attri­tion for all parties." Mancia, op cit pp 6-7

He then set forth the essence of the SCCP, observing that:

. .. there is nothing at all about the cooperation needed to evaluate the discovery outlined above that requires the parties to abandon meritorious arguments they may have, or even to commit to resolving all disagreements on their own. Further, it is in the interests of each of the parties to engage in this process cooperatively. For the Defendants, doing so will almost certainly result in having to produce less discovery, at lower cost. For the Plaintiffs, cooperation will almost certainly result in getting helpful information more quickly, and both Plaintiffs and Defendants are better off if they can avoid the costs associated with the voluminous filings submitted to the court in connection with this dispute. Finally, it is obvious that if undertaken in the spirit required by the discovery rules, particularly Rules 26(b)(2)(C) and 26(g), the adversary system will be fully engaged, as counsel will be able to advocate their clients' positions as relevant to the factors the rules establish, and if unable to reach a full agreement, will be able to bring their dispute back to the court for a prompt resolution. In fact, the cooperation that is necessary for this process to take place enhances the legitimate goals of the adversary system, by facilitating discovery of the facts needed to support the claims and defenses that have been raised, at a lesser cost, and expediting the time when the case may be resolved on its merits or settled. This clearly is advantageous to both Plaintiffs and Defendants.” Mancia, op cit at p. 12

Shortly after Mancia, Judge Shira Scheindlin, in Securities and Exchange Commission v. Collins & Aikman Corp., 256 F.R.D. 403 (S.D.N.Y., 2009) found that the SEC’s “blanket refusal to negotiate a workable search protocol” was “patently unreasonable” citing both Mancia and the SCCP. 

“Rule 26(f) requires the parties to hold a conference and prepare a discovery plan. … Had this been accomplished, the Court might not now be required to intervene in this particular dispute. I also draw the parties’ attention to the recently issued Sedona Conference Cooperation Proclamation, which urges parties to work in a cooperative rather than an adversarial manner to resolve discovery issues in order to stem the ‘rising monetary costs’ of discovery disputes.”   SEC v Collins, supra at p. 29

Since then, we have had a great deal of discussion about what cooperation means [2] with much of the focus on the challenges of search techniques and the need to confer and agree on search protocols including but not limited to, sampling. As Judge Scheindlin said in SEC v Collins: “The concept of sampling to test both the cost and the yield is now part of the mainstream approach to electronic discovery.”

And the specific endorsement of Technology Assisted Review(TAR)as a means of speeding up the process was first endorsed by Magistrate Judge Andrew Peck in his order in Rio Tinto PLC v Vale, SA 306 F.R.D. 125 (SDNY 2015) We shall discuss that issue more in Chapter 5 below.

But amidst all this talk of search protocol agreements, data sampling and TAR, it seems to me we have overlooked an extremely significant portion of the SCP.  

Paragraph 2 states:

“With this Proclamation, The Sedona Conference® launches a national drive to promote open and forthright information sharing, dialogue (internal and external), training, and the development of practical tools to facilitate cooperative, collaborative, transparent discovery.  This Proclamation challenges the bar to achieve these goals and refocus litigation toward the substantive resolution of legal disputes.”  (Emphasis added)

It seems to me we need more discussion about those “practical tools” which will then promote the ability to cooperate. We already have web-based applications which allow the posting and sharing of documents. These tools are now used routinely on large cases, and they are crucial for not only cutting costs but quickly and easily disseminating information to both sides of a case, which then allows quicker progress of the entire action.

But the culling down of enormous data sets to a manageable size for review is also an essential tool. Tools like these enable early low-cost access to any data set without the need to incur the full cost of native processing and thus make data available faster while reducing costs. This is the new generation of “… practical tools to facilitate cooperative, collaborative, transparent discovery” called for by the Sedona Conference Cooperation Proclamation.

For small cases, this approach is crucial. It means that the ultimate solu­tion is more than just knowing the rules, avoiding e-jargon, and under­standing the technology. The key is good lawyering and understanding the scope of all the procedural rules, not just those dealing with ESI.

In fact, a good argument can be made that small cases require an even greater level of understanding of these factors than larger cases. With larger cases, you typically have bigger budgets and more room to make mistakes. In small cases, a targeted plan of attack must be developed from the outset that will be sufficiently thorough to provide relevant discovery yet cost effective so the more limited budget will suffice.

Given the discussion above, what is the average practitioner to do to effectively manage e-Discovery in small cases? There are some practical ways in which you can approach the issue that can help. The first thing you can do costs nothing apart from the time spent thinking as a good lawyer. It is probably the most impor­tant thing you can do to minimize costs.

Take the time to think through what you really want to accomplish in terms of discovery of ESI. Make your requests tar­geted and specific enough to elicit exactly what you need for your case. Too often lawyers use the all-encompassing approach of casting the widest net possible. This obviously magnifies the cost of discovery. It might be done as a strategy, but more often it is done because it is easier.

While asking for everything does not require you to think about your case and determine early on what you need to meet your burden of proof, if you carefully tailor your requests, you can limit the amount of work that must be done. Which will lessen the amount of data that must be processed and reviewed. You will also have a good argument to persuade your opposing counsel to do the same or a judge to allow your motion for a protective order, thereby lessening your client's costs in responding to e-Discovery requests.

How do you go about performing effective triage at the outset? In federal court, and many state courts as well, you have a great tool: the FRCP 26(f) meet and confer conference.

My recommendation is to meet early and meet often. Although there may be a mandatory requirement to have at least one meet and confer, you are not limited to one meeting. If you meet early with your opposing counsel, you can take steps to define what they have, let them know how you feel they should preserve it and discuss how it should be collected in the most cost-effective way possible. You can do the same for your client's ESI so you can minimize your own expenses in terms of preservation and production concerns.

Next, know what you really want to accomplish in working with ESI. If you are not concerned with deleted information, you probably do not need the help of a computer forensics expert. On the other hand, if you do need the help of such an expert, that determination should be made quickly, and collection efforts should occur as soon as possible to avoid the inadvertent loss of information due simply to the normal operation of computer systems.

If you are not really concerned with metadata, you might be able to use less expensive collection options that do not preserve the metadata associated with the ESI you are collecting. Often, you are only looking for a copy of a file and do not care about the metadata of the original. If you know what you are doing and what you are giving up, you can minimize collection costs by stipulation.

Even if you do need to preserve metadata, there are relatively inexpensive options available that you can use without hiring expensive outside consultants. It may take a higher level of technical ability on your part, and you must determine if you are comfortable engaging in self collection methods. If you a comfortable with these options, then you can negotiate with the other side to use the appropriate software tools.

The point is that you never want to make these decisions in the dark, which is why the issue should be dealt with at a meet and confer.

One technique that can also be considered at a meet and confer is the use of phased discovery. Why demand the ESI from every potential witness in a case when a more targeted approach might better serve your need? Agree to limit initial collection efforts to the key custodians you want and that if discovery of their ESI proves fruitful, you can move on to collection from other, more peripheral players. If this does not produce much of value with the key witnesses, you can safely move on to other witnesses. Even with key witnesses, consider a phased approach by using sampling techniques. Before you demand production of an individual's full file shares from a company server, consider whether you should first review just their e-mail files. If that analysis turns up attach­ments that are relevant, then you can move on to file shares or other locations on the file server.

Limit the type of information you seek initially. If you are not looking for financial data, then do not demand production of all spreadsheet files. If there is a limited date range at issue, do not ask for every document on the server; ask only for those that fall within the pertinent date range. If you can limit the scope of what you are looking for by the use of key words, try filtering on key words. It might get you what you want right away. If key word searching is unsuccessful, you can then consider broadening the search or abandoning it altogether.

If you are a lawyer who does not have a great deal of experience in eDiscovery, get some help—the earlier the better. Hiring a consultant who can help you develop a streamlined eDiscovery plan may cost some money up front, but in terms of avoiding the cost of spinning your wheels or making mistakes, the overall expense will be lessened.

And be sure to engage the right kind of consultant to help you. Vendor-neutral consult­ants typically do not have a vested interest in using one particular product or procedure. A vendor-affiliated consultant always has a biased agenda. The bias may be useful to your case but be aware of what you are getting.

Planning, a targeted approach to discovery, cooperation between counsel, and the use of the proper tools to meet your specific case needs can help you lessen the cost of e-Discovery in smaller cases. There are many practi­cal technology options available short of a dedicated litigation support database solution to meet your needs in smaller cases. You must find what works best for you within the budget you have available and the particu­lar ESI you must manage.

But the ultimate solution is more than just heeding to the admonition above about knowing the rules and understanding the technology. In my estimation, it is the process not the technology. As Craig Ball once said, “The key consideration is workflow” and another noted eDiscovery expert, John Martin, once remarked “it’s the archer, not the arrow.”

The fact is that technology is not the key to successful management of e-discovery in small cases. Rather, the single most effective way to keep eDiscovery costs low is to work with your opposition in a cooperative manner so you can stipulate to the use of low-cost solutions.

We all must change to the new paradigm of working in the digital world. In the words of The Hon. Lee Rosenthal, former Chair of the Standing Committee of the Judicial Conference, “Litigation habits and customs learned in the days of paper must be revisited and revised. The culture of bench and bar must adjust.”

[1] https://thesedonaconference.org/download-pub/3802

[2] see a complete list at the Sedona site https://thesedonaconference.org/cooperation-proclamation