The Danger of Refusing to Cooperate in e-Discovery

Fighting in the technical world of electronic discovery is a dangerous proposition, especially if you do not know what you are doing. But do not take my word for it, take a look at the Bray & Gillespie case to see for yourself. Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 WL 546429 (M.D. Fla. Mar. 4, 2009). The plaintiff’s attorneys in this case were poster-boys for non-cooperation. Even after this sanction order taxing fees against the attorneys and their national law firm, they kept up their childish fighting. This belligerence cost their client the whole case. Bray & Gillespie Management LLC v. Lexington Ins. Co.2009 WL 2407754 (M.D.Fla. August 3, 2009). The latest Bray & Gillespie decision recommended that the plaintiff’s case be dismissed with prejudice, due primarily to pointless gamesmanship and spoilers in e-discovery. This all could have been avoided if plaintiff’s counsel had read and followed the Sedona Cooperation Proclamation.

I have written about Bray & Gillespie before. See eg: Judge Shira Scheindlin and I Speak on e-Discovery and Education and one of my all time favorite blogs, Plato’s Cave: why most lawyers love paper and hate e-discovery and what this means to the future of legal education. Now see my short video excerpt of a law school class on how this case illustrates the need for cooperation in e-discovery. It is not just a feel-good action, it is a smart strategy to win cases and keep clients. Suggest you watch this in High Definition using full screen mode for best results.