Judges are getting tough about cooperation.
eDiscovery case law is being driven by a handful of federal judges like Magistrate Judge John M. Facciola with the U.S. District Court in Washington, D.C. Recently, Facciola told litigants in the matter Taydon v. Greyhound Lines, Inc., there is “a new sheriff in town–not Gary Cooper, but me.”
Facciola is talking tough, but he wants lawyers to play nice. In law school, lawyers are trained to crush their opposition. But in eDiscovery, the updated Rules of Civil Procedure and emerging case law actually make it not only possible to make discovery a cooperative process, but mandate cooperation between parties. In Taydon, Facciola is fed up with parties treating eDiscovery like a war of attrition, and is ordering them to come up with a fair and effective plan for managing the process.
After declaring himself sherrif, Facciola ordered, “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.”
Discovery rules and pretrial procedures are designed to remove the risk of surprises at trial and provide for more a fair contest “by requiring disclosure of all relevant information.” However, discovery of all possible relevant information in our electronic world is not always possible. If attorneys want to make judges like Facciola happy, they should familiarize themselves with the Sedona Conference’s Cooperation Proclamation. The document promotes a less adversarial approach to discovery that’s not only practical, but has been endorsed by judges across the country.
In this order, Facciola rejected requests for sanctions that parties had requested, despite legitimate sounding claims that the “defendant failed to respond to discovery requests in a timely fashion and generally engaged in ‘delay tactics.’ Instead, he ordered a teleconference 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.”
Regular phone calls to craft a cooperative eDiscovery response plan is a sensible solution to an intractable problem. Technology can help opposing counsel coordinate efforts, but judges clearly expect more communication and forthright sharing of information. It seems clear from the tone of Facciola’s order that in the future, he and other judges might be less patient and more prone to imposing fines on parties that fail to cooperate.