Litigation costs are far too often driven up by an unnecessarily adversarial approach to discovery. Many clients and their counsel continue to believe that their litigation interests are best served through contention and a lack of reasonable candor. They are mistaken.
Several years ago, The Sedona Conference® addressed this issue with its Cooperation Proclamation, which called for increased cooperation in discovery. Since then, courts increasingly have encouraged cooperation, and commended those who do so.
For example, in Kleen Products LLC v. Packaging Corp. of Am., 2012 WL 4498465 (N.D. Ill. Sept. 28, 2012), the magistrate judge praised “the lawyers and their clients for conducting their discovery obligations in a collaborative manner.” The court applauded the parties for avoiding needless motion practice through meaningful meet-and-confers that began early and continued through discovery.
Since its publication, the Cooperation Proclamation has received nearly 150 judicial endorsements. Yet, the cooperation commended in Kleen Products remains too much of a rarity. Many litigants and their lawyers still don’t play nice in the sandbox. That needs to change.
The solution has two essential parts. One part lies with clients and their counsel. The other with the courts.
There are perhaps two explanations for the continued lack of cooperation in litigation. One is a simple unwillingness on the part of some to cooperate, whether because they believe it’s counter to their clients’ interests or because it simply isn’t in their character to do so. Let’s face it: lawyers aren’t known for being agreeable. The other explanation is that some lawyers just don’t understand how to cooperate in an “adversarial” system.
The latter group is in luck. The Sedona Conference® is taking the next step. Beyond merely proclaiming cooperation, The Sedona Conference® is now putting it into practice, by offering “practical training on how to implement cooperation in an adversarial civil justice system.” Hopefully this training program will help practitioners put the cooperation principles into practice, and they will in turn “pay it forward” by training their colleagues to do the same.
The other group presents a more challenging problem – and possibly one that only the courts can solve. Those in this group are unlikely to fundamentally alter their approach to litigation, especially after decades of practice, without some appropriate measure of compulsion.
Now, admittedly, there’s a certain irony (contradiction, even) in cultivating cooperation through compulsion. Compulsion is, after all, antithetical to cooperation in some sense. But bad habits are hard to break. And, worse, bad actors are unlikely to do the right thing on their own. Hence, some amount of compulsion is required.
As The Sedona Conference® apparently has recognized, merely proclaiming cooperation is not enough. More is needed. For some, the answer is simply education. For others, it’s consequences. And in this context, such consequences must come from the courts to have a meaningful impact.
Fortunately (or perhaps unfortunately, depending on your perspective), clients and counsel that refuse to cooperate in discovery may increasingly find themselves facing severe sanctions. Courts more and more expect lawyers to effectively balance their duties as advocates for their clients with their duties as officers of the court. This requires picking your battles and avoiding tactics aimed at driving up the other side’s costs or delaying the proceedings.
For example, just last month, Judge Robert E. Payne, of the Eastern District of Virginia, in E.I. Du Pont de Nemours & Co. v. Kolon Indus., Inc. ordered the defendant to pay what may amount to millions of dollars in fees and costs incurred by the plaintiff for the defendant’s refusal to cooperate in that case. According to Judge Payne: “While some of the tactics can be attributed to zealous advocacy in an intellectual property case with great significance to both parties, the tactics used by [the defendant] must be described as ‘Shermanesque,’” which the court noted referred to “Major General William Tecumseh Sherman’s scorched earth policy as he destroyed much of the South on his March to the Sea in November and December, 1864.” The court ordered the plaintiff to identify the fees and costs it contends should be awarded in light of the court’s ruling. This sanction comes after the court awarded the plaintiff an adverse jury instruction at trial for the defendant’s destruction of documents after the lawsuit was filed. The jury returned a $919 million judgment for the plaintiff for the defendant’s theft of the plaintiff’s trade secrets.
Courts are not stopping at monetary sanctions and adverse jury instructions. Innospan Corp. v. Intuit, Inc., 2012 WL 1144272 (N.D. Cal. Apr. 4, 2012), is a recent example of more severe consequences. Sanctioning the plaintiff for “relentless discovery violations” and a failure to cooperate, the court fined the plaintiff, granted default judgment on the defendants’ counterclaim, and dismissed the case entirely. Such severe consequences are likely to make even the most exasperating litigant or lawyer learn to cooperate.
Magistrate Judge John M. Facciola, one of the most active and respected jurists in the e-discovery community, perhaps best summarized courts’ expectations regarding cooperation in a recent opinion. In Tadayon et al. v. Greyhound Lines, Inc., 2012 WL 2048257 (D.D.C. June 6, 2012), both parties sought discovery sanctions against the other. Judge Facciola denied the plaintiffs’ motion and ordered them to show why they should not be required to pay certain fees and costs incurred by the defendant. The court then admonished the parties, under a final section of the opinion entitled simply (yet ominously) “High Noon”:
As explained at the discovery status hearing, . . . there is a new sheriff in town–not Gary Cooper, but me. The filing of forty-page discovery motions accompanied by thousands of pages of exhibits will cease and will now be replaced by a new regimen in which the parties, without surrendering any of their rights, must make genuine efforts to engage in the cooperative discovery regimen contemplated by The Sedona Conference® Cooperation Proclamation. First, the parties will meet and confer in person in a genuine, good faith effort to plan the rest of discovery. They shall discuss and agree, if they can, on issues such as the format of any additional productions, the timing and staging of all depositions, the submission to each other of discovery reports, and the scope and timing of any Federal Rule of Civil Procedure 30(b)(6) depositions. The parties will then jointly submit their discovery plan for my approval.
Litigants and their lawyers would be well served to approach discovery in this way. Those involved in this case were lucky, though — because Judge Facciola went even further. He provided what may be the most critical step in bringing to fruition the “new regimen” envisioned by the Cooperation Proclamation and its many judicial endorsements: commitment from the court. The court concluded:
I commit myself to work with them in resolving any disagreements, whether they arise initially or during discovery. To that end, I will schedule a telephonic status conference every two weeks in which I will ask the parties about their progress (or lack thereof) and try to resolve any disagreements they have.
Judge Facciola recognized in Tadayon that merely proclaiming cooperation and even threatening sanctions for falling short would not be enough. More was needed. Specifically, a commitment that the court itself also would engage in the cooperative regimen it mandated. Why? Because, again, some parties and practitioners don’t know how to cooperate and others are unwilling. In either instance, the courts themselves must be willing to commit to the cooperative process — not only through the compulsion of consequences, but also by direct engagement in that process and by providing guidance on how to cooperate.
Judge Facciola is doing exactly that. In addition to the commitment he made the parties in Tadayon, he is a member of the faculty for The Sedona Conference’s® cooperation training program.
So what’s the solution for bringing about a new regimen of cooperation? It lies in part with more clients and counsel like those commended in Kleen Products. The other part lies with greater compulsion and commitment from the courts. Judges must extend both a helping and a heavy hand, and understand which is needed when.
To be clear, cooperation doesn’t mean surrendering one’s rights, as Judge Facciola observed in Tadayon. It means only fighting those battles that materially matter for a case and doing so in a reasonable way. Cooperation is valuable not only for resolving disputes, but avoiding them in the first place.
Cooperation reduces risk, expense, and inefficiency in litigation. Once that’s understood, there’s no good reason not to cooperate. Hopefully, in time, compulsion will no longer be needed to get litigants and lawyers to do the right thing.