Cooperation. Some call it an e-discovery best practice. Others describe it as a minimum standard of care in e-discovery. Regardless of label, there is little question that cooperation is key to successfully navigating the e-discovery process and integral to controlling costs.
In this article, we explain why cooperation is an important e-discovery concept and also provide some real-world suggestions about areas of agreement about which parties may cooperate.
Want Just One Reason to Cooperate? What Comes Around Goes Around.
If there is one thing–and only one thing–you take away from this article, let it be this: you should cooperate with your opponent in e-discovery because what comes around goes around. Electronic discovery is really no different than life and we should all try to follow the Golden Rule–Do unto to others as you would have done unto you.
What this means is the next time you decide to respond to litigation production requests with non-searchable, multi-document pdf files, it is highly likely your opponent will return the favor. So, when you want to sort your opponent’s production chronologically to update your case timeline, you can forget it. Those documents were also produced as non-searchable image files with no original metadata which means they cannot be easily sorted.
Cooperation is important to e-discovery not only for reasons of self interest, but also because it facilitates efficiency in the process which means less time and money spent. If parties reach agreement on electronic discovery issues, it prevents unnecessary work and directs focus onto tasks that are necessary and meaningful to the case.
As Ben Franklin famously noted about cooperation, “if we do not hang together, we will all hang separately.”
Are you Obligated to Cooperate in E-Discovery? Probably.
If cooperation in e-discovery is advisable as a practical matter, are you legally obligated to cooperate with your opponent? Probably.
For authority supporting counsel’s duty to cooperate on electronic discovery issues, one need look no further than Federal Rule Civil Procedure 1 (and similar state rules). Rule 1 states that civil procedure rules should be applied by “the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” In a similar vein, his 2015 Year-End Report on the Federal Judiciary, Chief Justice John Roberts noted that it is the “…obligation of judges and lawyers to work cooperatively in controlling the expense and time demands of litigation”
Judges in lower courts are on the same page with the Chief. For instance, in Pyle v. Selective Ins. Co., 2:16-cv-335 (W.D. Pa Sept. 3, 2016) when a party argued that it did not have to cooperate because its opponent cited no authority obligating it to do so, the judge had none of it:
[This] argument totally misses the mark; in fact, it borders on being incomprehensible. Far from being baseless, Defendant’s request [for counsel to cooperate and provide search terms] is entirely consistent with both the letter and spirit of the FRCP regarding [electronic] discovery . . . .
In fact, as one court put it, e-discovery should be a party driven process and “among the items about which courts expect counsel to reach practical agreement . . . are search terms, date ranges, key players and the like.”
Step One: Be Prepared to Cooperate
By this point, we hope you are convinced that cooperating in e-discovery is important and something to pursue. But, just saying it is the right thing to do is not that helpful. So, what are some areas of agreement about which attorneys and litigants can cooperate? We will get to that in due time, but first you must be prepared to cooperate.
Before attorneys can have meaningful, productive discussions about e-discovery with their opponent, they must do their homework so that they are in a position to make informed decisions and agreements about e-discovery issues. Just as an attorney would not participate in a mediation without first spending time understanding the facts of a case, similarly, they should not participate in e-discovery meet and confer sessions without spending time learning about the facts underlying the e-discovery needs of a case.
To prepare to cooperate in e-discovery, among other things counsel should:
Assess e-discovery needs of case;
Understand their client’s ESI (electronically stored information) systems and storage;
Understand and advise client on ESI preservation and collection efforts;
Identify ESI custodians.
(The links above lead to more detailed articles on the topics).
Getting an understanding of the scope of the ESI relating to a matter not only helps attorneys make informed decisions about discovery, but also helps them prepare their case. For instance, interviewing custodians provides a great opportunity to develop a strong understanding about the facts of a case.
Step Two: Cooperate Already!
You’ve done your homework and are now in a position to have a productive and meaningful conversation about e-discovery with your litigation opponent, but where to start?
Here are a few suggestions.
- Relevant Dates and Time Frames. An initial and hopefully uncontroversial area about which parties can reach agreement is identification and agreement on relevant time periods that will be searched for documents.
- Custodians. Agreement on the identity and number of custodians from which electronic discovery will be taken is also important and, as noted above, an area on which courts expect agreement.
- Phasing of Discovery. Another potential area about which parties can cooperate is phasing discovery. That is, can the parties agree discovery be conducted in phases with rolling productions so that documents from important witnesses or about important issues are collected, reviewed and produced first and documents relating to other less important witnesses and issues deferred until necessary (if at all).
- Search Techniques. One of the most important areas of e-discovery cooperation is how the search for ESI will be conducted. Will documents be identified by search terms, file types, or predictive coding? If search terms are used, parties should be prepared to discuss relevant search terms or agree on a process under which the search terms will be determined.
- Format of Production. Another area about which parties should agree is the format of ESI production. Will it be in TIFF format with text files or in native (original) format and are load files necessary? How will the parties handle color documents? Parties should also consider discussing how to handle e-mail messages and attachments and whether they should be numbered consecutively and produced together (sometimes referred to as parent-child relationships)? It is also important to discuss what categories of metadata (internal data about the ESI such as creation date, author, recipient and the like) will be produced.
- Agreement on Information that is Not Reasonably Accessible. Under Federal Rule of Civil Procedure 26, parties generally need not produce ESI that is “not reasonably accessible.” By way of example, information that is “not reasonably accessible” includes system files that log user activity, temporary files and “cache” files. During the initial e-discovery meet and confer sessions, courts often encourage parties to reach agreement on what type of information is not accessible and will not be produced.
- Privileged Material and Clawback Agreements. Another area of cooperation and agreement is the handling of the production of privileged material. As a way to deal with unwanted production of privileged materials, parties should consider “clawback” agreements (an agreement to return inadvertently produced privileged information) under Federal Rule of Evidence 502(e) or a state counterpart.
- Databases and Structured Data. If the ESI you are contending with includes information in a database, it is a good idea to address the issue up front and agree on how the information will be queried and produced.
The list above is not exhaustive and every e-discovery project presents unique twists warranting discussion with a litigation adversary. For a more detailed discussion about cooperation in electronic discovery, The Sedona Conference has some helpful resources.