In a major coup for The Sedona Conference and electronic discovery specialists everywhere, Associate Justice Stephen Breyer of the United States Supreme Court has weighed in on e-discovery and written the preface to a special supplement of the Sedona Conference Journal, The Sedona Conference Journal, Vol. 10 Supplement, Fall 2009. Here is an excerpt from the Preface by Justice Breyer:
[The articles in this Supplement] suggest that if participants in the legal system act cooperatively in the fact-finding process, more cases will be able to be resolved on their merits more efficiently, and this will help ensure that the courts are not open only to the wealthy. I believe this to be a laudable goal, and hope that readers of this Journal will consider the articles carefully in connection with their efforts to try cases.
I commend everyone to read this special supplement, which will be released this week. I also join in Justice Breyer’s urging that you consider the articles carefully and try to apply these principles in your efforts to try cases. You might also want to give a copy of the Journal to the Bill E. Boie types down the hall from you. You know the ones; the old-school litigators who still think that discovery, especially e-discovery, is an exercise in hide-the-ball litigation tactics, and cooperation is what you pretend to do when the judge is looking. Anecdotal reports suggest that Bill E. Boie types are still in the majority, but, as Bob Dylan said, the times they are a-changin’.
The Case For Cooperation
The Sedona Cooperation Proclamation is a brief document of only two and a half pages. It is well summarized by its conclusion which states:
It is time to build upon modern Rules amendments, state and federal, which address e-discovery. Using this springboard, the legal profession can engage in a comprehensive effort to promote pre-trial discovery cooperation. Our “officer of the court” duties demand no less. This project is not utopian; rather, it is a tailored effort to effectuate the mandate of court rules calling for a “just, speedy, and inexpensive determination of every action” and the fundamental ethical principles governing our profession.
Although the proclamation is short, it contemplated the later creation of more extensive writings, including this Journal, and its lead article, The Case for Cooperation, 10 Sedona Conf. J. 339 (2009 Supp.) The article was written by a group of Sedona contributors led by Bill Butterfield, an attorney with Hausfeld LLP in Washington D.C. The executive editors were Richard G. Braman and Kenneth J. Withers, both of The Sedona Conference®. The contributing editors were John D. Luken, Dinsmore & Shohl LLP; Charles R. Ragan, Huron Consulting Group; Christopher M. Schultz, Perkins Coie LLP; and, Gregory B. Wood, Fulbright & Jaworski L.L.P.
The Case For Cooperation provides a Brandeis brief type of argument for cooperation in the field of discovery, particularly electronic discovery, where costs can otherwise quickly spiral out of control. It delineates two levels of cooperation:
Cooperation in this context is best understood as a two-tiered concept. First, there is a level of cooperation as defined by the Federal Rules, ethical considerations and common law. At this level, cooperation requires honesty and good faith by the opposing parties. Parties must refrain from engaging in abusive discovery practices. The parties need not agree on issues, but must make a good faith effort to resolve their disagreements. If they cannot resolve their differences, they must take defensible positions.
Then, there is the second level. While not required, this enhanced cooperative level offers advantages to the parties. At this level, the parties work together to develop, test and agree upon the nature of the information being sought. They will jointly explore the best method of solving discovery problems, especially those involving electronically stored information (“ESI”). The parties jointly address questions of burden and proportionality, seeking to narrow discovery requests and preservation requirements as much as reasonable. At this level, cooperation allows the parties to save money, maintain greater control over the dispersal of information, maintain goodwill with courts, and generally get to the litigation’s merits at the earliest practicable time.
The Case For Cooperation is a well research article with 159 footnotes. It provides an important reference of the laws and policies behind the Cooperation Proclamation. It is also a persuasive document to show to the Bill E. Boie types that their brand of zealous discovery, hurts, rather than helps their clients. Section five of the article shows the benefits of cooperation, focusing on the economic incentives and strategic benefits. It also explains what cooperative discovery is and is not:
Cooperation in the discovery context does not mean giving up vigorous advocacy; it does not mean volunteering legal theories or suggesting paths along which discovery might take place; and it does not mean forgoing meritorious procedural or substantive issues. Cooperation does mean working with the opposing party and counsel in defining and focusing discovery requests and in selecting and implementing electronic searching protocols. It includes facilitating rather than obstructing the production and review of information being exchanged, interpreting and responding to discovery requests reasonably and in good faith, and being responsive to communications from the opposing party and counsel regarding discovery issues. It is characterized by communication rather than stonewalling, reciprocal candor rather than “hiding the ball,” and responsiveness rather than obscuration and delay.
Cooperation defined in this manner is not only largely compelled by the attorney’s obligation to comply with legal rules, ethical obligations and the professional rules of conduct, but it also offers the client the benefits of creating and maintaining credibility with the court and the opposition, enhancing the effectiveness of advocacy, and minimizing client costs and risks.
The Proclamation calls for a three-part process to implement a new cooperative approach to discovery summarized by the acronym ACT. The first step is Awareness, the second is Commitment, and the third is Tools. The first step of consciousness-raising was accomplished by the Proclamation itself and related publicity and announcements. The Case for Cooperation, and other articles in the Journal and elsewhere, are part of the second step of Commitment. This is described in the Proclamation as “Developing a detailed understanding and full articulation of the issues and changes needed to obtain cooperative fact-finding.” The third step, Tools, is the final stage that will continue for many years. The Cooperation Proclamation describes this activity as:
Developing and distributing practical “toolkits” to train and support lawyers, judges, other professionals, and students in techniques of discovery cooperation, collaboration, and transparency. Components will include training programs tailored to each stakeholder; a clearinghouse of practical resources, including form agreements, case management orders, discovery protocols, etc.; court-annexed e-discovery ADR with qualified counselors and mediators, available to assist parties of limited means; guides for judges faced with motions for sanctions; law school programs to train students in the technical, legal, and cooperative aspects of e-discovery; and programs to assist individuals and businesses with basic e-record management, in an effort to avoid discovery problems altogether.
The Tools stage is really a Schools stage. Information alone is a fine tool, but it is nearly worthless unless you know how to use it. The indispensable knowledge of how to use tools, especially sophisticated tools created by others as Sedona here contemplates, takes instruction, perseverance, and time. As Bob Dylan said: “If your time to you Is worth savin’ Then you better start swimmin’ Or you’ll sink like a stone For the times they are a-changin’.”
The Bull’s-Eye View of Cooperation in Discovery
The next article in the Journal was written by Professor Steven S. Gensler of the University of Oklahoma College of Law. It is entitled The Bull’s-Eye View of Cooperation in Discovery, 10 Sedona Conf. J. 363 (2009 Supp.). It discusses three different types of cooperation as illustrated in the graphic below and how they can all be part of an integrated strategy.
This article provides an academic, theoretical basis for the concepts of cooperation and related laws and policies. As Professor Gensler correctly notes:
The Cooperation Proclamation is exactly right when it urges lawyers to see cooperation as a means for advancing their clients’ interests and not as a retreat from their duties as loyal advocates. As I have written elsewhere, the lawyers who default to battle mode in discovery – who fail even to consider whether cooperation might yield better results – are the ones who truly fail to serve their clients’ interests.
These default mode discovery-battlers remind me of Bob Dylan’s one song that mentions both lawyers and professors, Ballad Of A Thin Man:
You walk into the room
With your pencil in your hand
You see somebody naked
And you say, “Who is that man?”
You try so hard
But you don’t understand
Just what you’ll say
When you get home
Because something is happening here
But you don’t know what it is
Do you, Mister Jones?
You’ve been with the professors
And they’ve all liked your looks
With great lawyers you have
Discussed lepers and crooks
You’ve been through all of
F. Scott Fitzgerald’s books
You’re very well read
It’s well known
Because something is happening here
But you don’t know what it is
Do you, Mister Jones?
It seems like many trial lawyers today are in the position of the fictional Mister Jones in Dylan’s song. They know something important is happening with the computerization of society and explosion of electronic information, but they don’t really know what it is. They may attend seminars and CLEs, and some may try hard, but still not know what they’ll say when they get home. That in large part that depends on the quality of the CLEs, on whether the schools can really teach the tools.
Mancia v. Mayflower Begins a Pilgrimage
to the New World of Cooperation
The last article in the Sedona Journal on Cooperation discusses the first twelve cases to cite the Sedona Cooperation Proclamation. It was written by yours truly and is entitled Mancia v. Mayflower Begins a Pilgrimage to the New World of Cooperation, 10 Sedona Conf. J. 377 (2009 Supp.). The first opinion to cite and endorse the proclamation was Mancia v. Mayflower Textile Services. Co., 253 F.R.D. 354 (D.Md. Oct. 15, 2008) by Judge Paul W. Grimm. The next eleven opinions to follow Grimm in Mayflower were:
Aguilar v. Immigration and Customs Enforcement Div. of U.S. Dept. of Homeland Sec., 255 F.R.D. 350 (S.D.N.Y. Nov. 21, 2008).
Gipson, et al v. Southwestern Bell. Tel. Co., 2008 U.S. LEXIS 103822 (D.Kan. Dec. 23, 2008).
Covad Communications Co. v. Revonet, Inc., 254 F.R.D. 147 (D.D.C. Dec. 24, 2008).
S.E.C. v. Collins & Aikman Corp., 256 F.R.D. 403, Fed. Sec. L. Rep. P 95,045 (S.D.N.Y. Jan. 13, 2009).
William A. Gross Const. Associates, Inc. v. American Mfrs. Mut. Ins. Co., 256 F.R.D. 134 (S.D.N.Y. March 19, 2009).
Newman v. Borders, Inc., 257 F.R.D. 1 (D.D.C. April 6, 2009).
Ford Motor Co. v. Edgewood Properties, Inc., 257 F.R.D. 418 (D.N.J. May 19, 2009).
Dunkin’ Donuts Franchised Restaurants LLC v. Grand Cen. Donuts, Inc., 2009 WL 1750348 (E.D.N.Y. June 19, 2009).
Wells Fargo Bank, N.A. v. LaSalle Bank Nat. Ass’n, 2009 WL 2243854 (S.D.Ohio July 24, 2009).
In re Direct Southwest, Inc., Fair Labor Standards Act (FLSA) Litigation, 2009 WL 2461716 (E.D.La. Aug. 7, 2009).
Capitol Records, Inc. v. MP3tunes, LLC, 2009 WL 2568431 (S.D.N.Y. Aug. 13, 2009).
My article discusses these cases, most of which are already well known, and explains why the judges referred the parties to the Proclamation. I also show what the first cases have in common, aside from the obvious of uncooperative attorneys. These first cases primarily deal with technical disputes concerning form of production, metadata, and search protocols, mainly keyword lists. In my opinion, attorneys only squabble about such relatively inconsequential technical issues because they do not understand e-discovery. They know something is happening here, but they don’t know what it is.
They fight over form of production because they do not grasp that metadata is not really that important, and it is a waste of client money and court time to hide it. They also fail to do simple things, like decide what form of production they want when they make a production request, not afterwards. I have written about this competence issue before in Paper or Plastic? The Wisdom of Supermarket Bag Boys and the Need for Local Rules.
They fight over search protocols because they really have no idea how to find the relevant needles in the vast collections of electronic haystacks that their clients foolishly maintain. Since they do not know what to do, they just propose keyword search terms. They pretend like e-discovery search is the same as a Google or Westlaw search because that is all they know. They then engage in foolish games of competing keyword lists that quickly lead nowhere. I have also written about this before in Child’s Game of “Go Fish” is a Poor Model for e-Discovery Search.
The twelve cases that I write about are all sounding the chimes of cooperation, heralding the warriors whose strength is not to fight. As Dylan wrote in Chimes of Freedom:
Far between sundown’s finish an’ midnight’s broken toll
We ducked inside the doorway, thunder crashing
As majestic bells of bolts struck shadows in the sounds
Seeming to be the chimes of freedom flashing
Flashing for the warriors whose strength is not to fight
Flashing for the refugees on the unarmed road of flight
An’ for each an’ ev’ry underdog soldier in the night
An’ we gazed upon the chimes of freedom flashing.
Almost 100 Judges Have Endorsed
the Cooperation Proclamation
To date almost 100 judges have signed onto the Proclamation. I expect the one-hundredth will come soon and I will let you know who it is. In the meantime, here are the judges who have endorsed the Sedona Cooperation Proclamation so far:
ALABAMA Hon. John L. Carroll, Retired, Birmingham; Hon. William E. Cassady, U.S. District Court for the Southern District of Alabama, Mobile
ARIZONA Hon. Andrew D. Hurwitz, Vice Chief Justice, Arizona Supreme Court, Phoenix
ARKANSAS Hon. Jerry W. Cavaneau, U.S. District Court for the Eastern District of Arkansas, Little Rock
CALIFORNIA Hon. Robert N. Block, U.S. District Court for the Central District of California, Los Angeles; Hon. Susan Y. Illston, U.S. District Court for the Northern District of California, San Francisco; Hon. Elizabeth D. Laporte, U.S. District Court for the Northern District of California, San Francisco; Hon. Louisa S. Porter, U.S. District Court for the Southern District of California, San Diego; Hon. David C. Velasquez, Orange County Superior Court, Santa Ana; Hon. Carl J. West, Los Angeles County Superior Court, Los Angeles
COLORADO Hon. Morris B. Hoffman, Colorado 2nd Judicial District Court, Denver; Hon. Craig B. Schaffer, U.S. District Court for the District of Colorado, Denver
DISTRICT OF COLUMBIA Hon. Francis M. Allegra, U.S. Court of Federal Claims, Washington; Hon. Herbert B. Dixon, Jr., Superior Court of the District of Columbia, Washington; Hon. John M. Facciola, U.S. District Court for the District of Columbia, Washington; Chief Judge Royce C. Lamberth, U.S. District Court for the District of Columbia, Washington; Hon. Gregory E. Mize, Retired, Washington
FLORIDA Hon. Barry L. Garber, U.S. District Court for the Southern District of Florida, Miami; Hon. Thomas E. Morris, U.S. District Court for the Middle District of Florida, Jacksonville; Hon. Richard A. Nielsen, 13th Judicial Circuit, Tampa; Hon. Thomas B. Smith, Ninth Judicial Circuit, Orlando
ILLINOIS Hon. Martin C. Ashman, U.S. District Court for the Northern District of Illinois, Chicago; Hon. David G. Bernthal, U.S. District Court for the Central District of Illinois, Urbana; Hon. Geraldine Soat Brown, U.S. District Court for the Northern District of Illinois, Chicago; Hon. Jeffrey Cole, U.S. District Court for the Northern District of Illinois, Chicago; Hon. Susan E. Cox, U.S. District Court for the Northern District of Illinois, Chicago; Hon. Morton Denlow, U.S. District Court for the Northern District of Illinois, Chicago; Hon. Peter A. Flynn, Illinois Superior Court, Chicago; Hon. John A. Gorman, U.S. District Court for the Central District of Illinois, Peoria; Chief Judge James F. Holderman, U.S. District Court for the Northern District of Illinois, Chicago; Hon. Arlander Keys, U.S. District Court for the Northern District of Illinois, Chicago; Hon. P. Michael Mahoney, U.S. District Court for the Northern District of Illinois, Rockford; Hon. Michael T. Mason, U.S. District Court for the Northern District of Illinois, Chicago; Hon. Richard Mills, U.S. District Court for the Central District of Illinois, Chicago; Hon. Nan R. Nolan, U.S. District Court for the Northern District of Illinois, Chicago; Hon. Sidney I. Schenkier, U.S. District Court for the Northern District of Illinois, Chicago; Hon. Susan P. Sonderby, U.S. Bankruptcy Court for the Northern District of Illinois, Chicago; Hon. Maria Valdez, U.S. District Court for the Northern District of Illinois, Chicago
INDIANA Hon. Kenneth H. Johnson, Marion County Superior Court, Indianapolis
KANSAS Hon. J. Thomas Marten, U.S. District Court for the District of Kansas, Wichita; Hon. James P. O’Hara, U.S. District Court for the District of Kansas, Kansas City; Hon. K. Gary Sebelius, U.S. District Court for the District of Kansas, Kansas City; Hon. David Waxse, U.S. District Court for the District of Kansas, Kansas City
LOUISIANA Hon. Eldon E. Fallon, U.S. District Court for the Eastern District of Louisiana, New Orleans; Hon. Sally Shushan, U.S. District Court for the Eastern District of Louisiana, New Orleans
MARYLAND Hon. Lynne A. Battaglia, Maryland Court of Appeals, Annapolis; Hon. Stuart R. Berger, Circuit Court for Baltimore City, Baltimore; Hon. Paul W. Grimm, U.S. District Court for the District of Maryland, Baltimore; Hon. Michael D. Mason, Montgomery County Circuit Court, Rockville; Hon. Albert J. Matricciani, Jr., Maryland Court of Special Appeals, Baltimore; Hon. Steven I. Platt, Retired, Upper Marlboro
MASSACHUSETTS Hon. Robert B. Collings, U.S. District Court for the District of Massachusetts, Boston; Hon. Timothy S. Hillman, U.S. District Court for the District of Massachusetts, Worcester; Hon. Allan van Gestel, Retired, Boston
MISSISSIPPI Hon. Jerry A. Davis, U.S. District Court for the Northern District of Mississippi, Aberdeen
NEVADA Hon. Elizabeth Gonzalez, Nevada Eighth Judicial District Court, Las Vegas
NEW JERSEY Hon. Katharine S. Hayden, U.S. District Court for the District of New Jersey, Newark; Hon. John J. Hughes, Retired, Trenton
NEW YORK Hon. Leonard B. Austin, New York Supreme Court, Commercial Division, Mineola; Hon. Carolyn E. Demarest, New York Supreme Court, Commercial Division, Brooklyn; Hon. Helen E. Freedman, New York Supreme Court, Appellate Division, New York; Hon. Marilyn D. Go, U.S. District Court for the Eastern District of New York, Brooklyn; Hon. Richard B. Lowe III, New York Supreme Court, Commercial Division, New York; Hon. Frank Maas, U.S. District Court for the Southern District of New York, New York; Hon. Andrew J. Peck, U.S. District Court for the Southern District of New York, New York; Hon. David E. Peebles, U.S. District Court for the Northern District of New York, Syracuse; Hon. Shira A. Scheindlin, U.S. District Court for the Southern District of New York, New York; Hon. Lisa Margaret Smith, U.S. District Court for the Southern District of New York, New York; Hon. Richard J. Sullivan, U.S. District Court for the Southern District of New York, New York; Hon. Ira B. Warshawsky, New York Supreme Court, Commercial Division, Mineola
NORTH CAROLINA Hon. Albert Diaz, North Carolina Business Court, Charlotte; Hon. John R. Jolly, Jr., North Carolina Business Court, Raleigh; Hon. Ben F. Tennille, North Carolina Business Court, Greensboro
OHIO Hon. William H. Baughman, Jr., U.S. District Court for the Northern District of Ohio, Cleveland; Hon. John P. Bessey, Franklin County Court of Common Pleas, Columbus; Hon. Richard A. Frye, Franklin County Court of Common Pleas, Columbus; Hon. Thomas H. Gerken, Hocking County Common Pleas Court, Logan; Hon. George J. Limbert, U.S. District Court for the Northern District of Ohio, Youngstown; Hon. Michael R. Merz, U.S. District Court for the Southern District of Ohio, Cincinnati; Hon. Kathleen McDonald O’Malley, U.S. District Court for the Northern District of Ohio, Cleveland
OKLAHOMA Hon. Robert E. Bacharach, U.S. District Court for the Western District of Oklahoma, Oklahoma City; Hon. Robin J. Cauthron, U.S. District Court for the Western District of Oklahoma, Oklahoma City; Hon. Stephen P. Friot, U.S. District Court for the Western District of Oklahoma, Oklahoma City
OREGON Hon. Dennis J. Hubel, U.S. District Court for the District of Oregon, Portland
PENNSYLVANIA Hon. Linda K. Caracappa, U.S. District Court for the Eastern District of Pennsylvania, Philadelphia; Hon. Lisa P. Lenihan, U.S. District Court for the Western District of Pennsylvania, Pittsburgh; Hon. Christine A. Ward, Allegheny Court of Common Pleas, Pittsburgh
TENNESSEE Hon. Diane K. Vescovo, U.S. District Court for the Western District of Tennessee, Memphis
TEXAS Hon. Martin Hoffman, 68th Civil District Court, Dallas; Hon. Martin L. Lowy, 101st Civil District Court, Dallas; Hon. Nancy S. Nowak, U.S. District Court for the Western District of Texas, San Antonio
WASHINGTON Hon. James P. Donohue, U.S. District Court for the Western District of Washington, Seattle; Hon. Barbara Jacobs Rothstein, Retired, Seattle; Hon. Karen L. Strombom, U.S. District Court for the Western District of Washington, Seattle
WISCONSIN Hon. Aaron E. Goodstein, U.S. District Court for the Eastern District of Wisconsin, Milwaukee
This is just the beginning of what I predict will be exponential growth in judge endorsements. I suspect this will go viral within twelve months or so. Do not be left out on this one. Create a new more cooperative identity when it comes to discovery, especially e-discovery. As Bon Dylan said in It’s Alright, Ma (I’m Only Bleeding): “He not busy being born, is busy dying.”
So, get your white-hat on now. Learn how to play the new game of cooperative discovery today, or be branded as a bad guy tomorrow. How many rulings do you think will go your way in front of a proclamation sign-on judge who thinks you are a non-cooperator? As Dylan said in Drifter’s Escape:
“Oh, help me in my weakness,” I heard the drifter say, As they carried him from the courtroom And were taking him away. “My trip hasn’t been a pleasant one And my time it isn’t long, And I still do not know What it was that I’ve done wrong.”
Well, the judge, he cast his robe aside, A tear came to his eye, “You fail to understand,” he said, “Why must you even try?” Outside, the crowd was stirring, You could hear it from the door. Inside, the judge was stepping down, While the jury cried for more.
It is really not that hard to cooperate. Attorneys do it all of the time in areas where they know what they are doing. Pre-trial stipulations come to mind, as do evidence stipulations, not to mention mediations and other forms of ADR. But it is hard to cooperate on electronic discovery when you are not comfortable with the field and do not know what you are doing. For instance, you may not know if a particular issue or concession is important or not. When you do not know, you tend to treat everything as critical. Something is happening here, but you don’t know what it is. You are afraid of making a mistake that will cost your client. You are afraid of looking stupid. For those reasons, you object to everything your adversary wants. But in the process, your obstructionist behavior costs your client way more than any mistake could. It may even cost your client the whole case. The judge may ask you to explain, and you can’t, because you only know that something is going on, but not what it is. What do you have left then, when your reputation is gone? “The answer, my friend, is blowin’ in the wind, The answer is blowin’ in the wind.”
The path to cooperation is illuminated by competence. That is why the third phase, the Tools phase, is a Schools phase; it needs to include a comprehensive educational program. If a lawyer does not understand the e-discovery issues they are facing, then they should bring in special counsel who does. That is an ethical imperative. You have to know what is going on. When attorneys have the knowledge they need to understand the full dynamics of the issues, then, and perhaps only then, does cooperation come easily. That is why I leave you with this parting wish, that you may find the knowledge to stand upright, be strong, and cooperate. And, as the great Bob Dylan wished for us all:
May you grow up to be righteous,
may you grow up to be true.
May you always know the truth
and see the lights surrounding you.
May you always be courageous,
stand upright and be strong.
May you stay forever young.