The Great Cooperation Debate

Migrated from eDJGroupInc.com. Author: Mikki Tomlinson. Published: 2012-02-24 08:00:12  The commentary to Rule 26 of the Federal Rules of Civil Procedure directs parties to discuss issues related to ESI. In 2008 the Sedona Conference® published the Cooperation Proclamation .  Since that time, more than 100 members of the judiciary – both at the federal and state court levels – have formally endorsed the Cooperation Proclamation.  There have been multiple articles and opinions addressing the topic of cooperation in eDiscovery.  And, if you poll the legal industry about whether they believe cooperation in eDiscovery is a must-do practice, I would bet the yes answers would outnumber the no answers.  Yet, I question whether the legal industry has truly achieved a state of cooperation in eDiscovery disputes more often than not.This topic is near and dear to my heart and I am eager to talk about it any chance I get.  Judge Peck’s many references to cooperation in the February 8, 2011, Da Silva Moore v. Publicis Groupe et al. hearing brought the issue back to the forefront of my thoughts.  Based on my experiences in the trenches, my perspective is that something has to give!  I have had many conversations with others, however, that take a different point of view.  Not that it is not an important subject – rather, that it is not worth debating about because practices of cooperation in eDiscovery disputes as we know them today are simply not likely to change.I have seen cooperation in practice span the spectrum of being great with excellent results, to horrible with painful results, and everything in between.  In my experience, most of the time – but certainly not all – parties come to the table with good intentions.  And most of the time – but certainly not all – the disputes that arise over eDiscovery come down to ignorance.I would characterize this as “good intentions, bad results.”  How do parties end up here?  I could write multiple blogs providing examples and discussion on this.  For purposes of staying on point in this blog, I will refrain.  The point I want to stress is the importance of eDiscovery knowledge and education – both for litigants and the judiciary.  On countless occasions I have worked through disputes with parties that were a result of lack of understanding of how to manage ESI collections that were easily resolved with further discussion and education as to the issue at hand. I have also found that, generally, fewer disputes arise when all parties at the table have a good understanding of how to properly manage ESI.The opposite of good intentions is bad intentions. I have on many occasions witnessed “bad intentions, bad results” when it comes to cooperation.  I could also write multiple blogs providing examples and discussion on this, but will refrain here.  It isn’t supposed to happen, but it does.  Perhaps one could argue “bad intentions” is a mischaracterization and instead debate it as “zealous advocacy”.  The counter-argument then being “over-zealous advocacy”.  Where is the line crossed from zealous advocacy to unreasonable?  That is most definitely an often debated and argued question.What is your view on the topic?  Do you think cooperation in eDiscovery continues to be a worthy discussion?  Or do you believe that things will not change due to the adversarial nature of litigation?  Should we, as an industry, put the topic of cooperation as a broad to discussion to rest and leave it to be handled on a case-by-case basis? Or is there something that we, as an industry, can do to affect positive change?