More on the Preservation Discussion: It Still Comes Down to Cooperation

Migrated from eDJGroupInc.com. Author: Mikki Tomlinson. Published: 2011-12-20 09:58:55  There has been a significant amount of discussion, both formal and informal, surrounding whether the Federal Rules of Civil Procedure should be amended as to preservation and sanctions.  Some believe that the time is not yet ripe, while others have presented arguments to the contrary.   There is, however, one common theme in the debates, blogs, papers and meetings:  cooperation.Every time the subject of cooperation comes up, I ask myself “Isn’t this an old conversation?”  The answer is “yes” insofar as we have been discussing the topic for years.  Yet, we clearly have not mastered the art of cooperation in eDiscovery (as most recently evidenced in Pippins v KPMG, LLC., No. 11 Civ. 0377 (CM)(JLC), 2011 WL 4701849 (S.D.N.Y. Oct. 7, 2011)).  So, the answer is actually “no.”  Cooperation is not a stale topic – it remains relevant.In 2006, the commentary to the Rule 26(f) amendment stated as follows:“…amended to direct the parties to discuss any issues regarding preservation…particularly important with regard to electronicallystored information.  The dynamic nature of electronically stored information may complicate preservation obligations…Failure to address preservation issues early in litigation increases uncertainty and raises a risk of disputes.“The parties’ discussion should pay particular attention to the balance between the competing needs to preserve relevant evidence and tocontinue routine operations critical to ongoing activities.  Complete or broad cessation of a party’s routine computer operations can paralyze the party’s activities.  Cf. Manual for Complex Litigation (4^th) § 11.422 (“A blanket preservation order may be prohibitively expensive and  nduly burdensome for parties dependent on computer systems for their day-to-day operations.”) The parties should take account of these considerations in their discussions, with the goal of agreeing on reasonable preservation steps.”This has cooperation written all over it.  It also predicts the painful position litigants will be in if they fail to successfully work within theframework and spirit of the Rule.In 2008, two years after the eDiscovery amendments to the FRCP went into effect, the Sedona Conference® published the Cooperation Proclamation, which promotes and provides a model to members of the Bar for cooperation in the eDiscovery process.In 2010, four years after the eDiscovery amendments to the FRCP went into effect, the Duke Conference on Civil Litigation included a paneltitled “E-Discovery: Discussion of the Cost Benefit Analysis of E-Discovery and the Degree to Which the New Rules Are Working” wherein the panelists advocated for the Advisory Committee to contemplate FRCP amendments related to preservation and sanctions.In 2011, five years after the eDiscovery amendments to the FRCP went into effect, I had the privilege of participating as an observer atthe Discovery Subcommittee of the Advisory Committee on Civil Rules’ mini-conference in September.In 2012, six years after the eDiscovery amendments to the FRCP…Do you see where I’m headed?In 2013…Perhaps we will still be debating amendments to the FRCP (likely).  Perhaps we will have gotten better at cooperation (hopefully).Perhaps we will do (at least a little of) both.  Either way, as of right now it seems we are trapped in the scenes of Groundhog Day.While the endorsement of more than 100 judges of the Sedona Conference® Cooperation Proclamation seems like progress, there are more than 1,000 federal district and magistrate judges.  And while there are hundreds of blogs, CLE programs, and judicial opinions on the topic of cooperation, the question remains:  Have we actually made progress?  In light of the current complaints of litigants and their counsel, I would say “not much.”  Is it the rules that are not working, or is it the parties, or is it simply the adversarial nature of our litigation system…or a combination of all of the above and more?All of these questions were pondered at the September 2011 Mini-Conference on Preservation and Sanctions – supported by many valid and powerful arguments from all angles.   At the end of the day, however, there was no consensus on resolution of the problem.  Yet, there remained that one nagging question:  Why can’t we all just get along?     As an alternative to an attempt at answering that question or suggesting a resolution here, I implore you to consider the root of theproblem.  I am not referring to the “root” in terms of the procedural rules, caselaw, education, etc.  Instead, I am referring to how parties mis?manage information assets and non-assets.