Having heard two US Magistrate Judges in two weeks emphasise that ediscovery co-operation does not require “sitting round a campfire singing kumbaya”, I was interested to see that CaseCentral has picked up the same theme in their latest Case in Point cartoon.
Many lawyers will say that such cooperation is “sleeping with the enemy”, that they feel that it conflicts with their duty to do the best for their clients, and that they cannot explain it to them. Sometimes, they may be right about this to some extent, however unmeritorious that may be, although, in the UK at least, such an approach almost always conflicts with their duty to the court and their obligations under the rules, not least in respect of the overriding objective.
There are only two possible remedies where there has been non-co-operation: one is pre-emptive active management by the court, imposing co-operation by order; the other is punishment in costs. In the UK, this will usually take the form of recompense to opponents for money thrown away. A lot of this wasted money is down to ignorance rather than intent – ignorance of the rules or ignorance of alternative ways of addressing the volumes. The penalties are likely to be much the same, whatever the cause.
Ignorance inevitably involves no assessment of risk. Where non-cooperation is deliberate, however, the deliberations ought to include a calculation which balances the perceived benefits (often the grinding down of a weaker opponent) against the risk of being caught and punished in costs. The cases suggest that the balance is shifting, as judges become more aware of their powers, of their duty to hold the ring between parties of differing resources, and of the alternatives which the oppressor might have adopted.
The Sedona Cooperation Proclamation referenced in the cartoon can be found here. Give it a read before you next decide how best to serve your client’s interests in giving or receiving discovery.