León Cosgrove

Party Cooperation in Discovery and the Amended Federal Rules of Civil Procedure

By: Ellen Ross Belfer

scalesAmendments to the Federal Rules of Civil Procedure relating to discovery and electronic discovery became effective on December 1, 2015. A number of lawyers and law firm websites have outlined and discussed the amended language regarding proportionality, party cooperation, and judicial oversight in discovery. This piece will discuss the Rule 1 and Rule 26 amendments on party cooperation; because the amendments do not actually require increased cooperation during the discovery process, there is little likelihood that such cooperation will be achieved.


BACKGROUND

The amendment process dates to 2010, when the Advisory Committee on Civil Rules organized the Duke Conference to explore the current costs of civil litigation, particularly discovery, and to discuss possible solutions. The Duke Conference looked at empirical data and heard from judges, practitioners, and academics on the state of the civil discovery system. Three concrete initiatives emerged to revise the existing rules: proportionality in discovery, increased cooperation among the parties, and early judicial case management. While the three are interconnected, I will focus the discussion here on party cooperation.

A major takeaway from the Duke Conference was the value of party cooperation to achieving proportionality in discovery. The empirical data gathered in preparation for the Duke Conference confirmed that parties are in the best position to set the course of discovery in a particular matter. Over 95% of practitioners responding to an ABA Survey believed that collaboration and professionalism by attorneys can reduce client costs in civil litigation; 58% acknowledged the usefulness of the Rule 26(f) conference to develop a discovery plan; and 60% believed that the duty to confer with opposing counsel before filing a discovery motion can affect the case in ways to avoid or narrow a discovery motion.

RULE 1 AND RULE 26 AMENDMENTS

The Advisory Committee cited cooperation among the parties as a primary initiative for the new amendments. However, the new rules fall short, including only the addition of a few words (underlined) to Rule 1: “[These rules] should be construed, and administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.”  Even this miniscule change engendered controversy during drafting—a fear that litigants would seek sanctions for violations of the purported duty to cooperate. To appease these critics, the Advisory Committee included a Committee Note to assure litigants that the amendment “does not create a new or independent source of sanctions.”

New amendments to Rule 26(d) are intended to encourage early discussions among counsel regarding discovery. Rule 26(d)(2) now allows parties to “deliver” discovery requests before the initial Rule 26(f) conference. Delivery of these requests is not considered “service”; such requests will be considered served at the first Rule 26(f) conference. “This relaxation of the discovery moratorium (prior to the Rule 26(f) conference) is designed to facilitate focused discussion during the Rule 26(f) conference. Discussion at the conference may produce changes in the requests.” The Advisory Committee also counsels that Rule 26(f) conference discussions should center on the benefits of phased discovery. And new Rule 26(d)(3) clarifies that parties can make stipulations regarding the sequence of discovery in a particular case.

COOPERATION AMONG THE PARTIES MUST BE FORCED

The above changes to Rules 1 and 26 are plainly insufficient. The Advisory Committee itself recognized that its rule amendments will not result in cooperation. But it believed that the amendment to Rule 1 “will provide a meaningful step in that direction.” The changes lack teeth, evidenced by the fact that the Committee even went out of its way to reassure critics that there is no duty to cooperate under Rule 1 and therefore no basis for sanctions for failure to cooperate.

Unfortunately, attorneys’ fears that cooperation in discovery undermines our adversarial system will prevent real change. Some attorneys believe that advocacy requires tactics such as hiding information, burying the opposing party in discovery requests and objections, and forcing settlement through the threat of expensive litigation. But there is no inherent conflict between cooperative discovery and a true adversarial system: “However central the adversary system is to our way of formal dispute resolution, there is nothing inherent in it that precludes cooperation between the parties and their attorneys during the litigation process to achieve orderly and cost-effective discovery of the competing facts on which the system depends.”[1] Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation,[2] and therefore the process of obtaining the relevant facts should be a cooperative one.[3]

In recent years, there has been more of a push to promote cooperation in discovery. Rule 26(f) was previously amended in 2006 to direct the parties to discuss discovery of ESI during their discovery-planning conference. Yet the 2006 amendments did not actually require the parties to compromise; rather, they merely emphasized making efforts to identify e-discovery issues early and to deal with these issues in discovery plans.

The Sedona Conference first issued its Cooperation Proclamation in 2008, and has been pushing for a “paradigm shift for the discovery process” from adversarial conduct to cooperation. “In addition to rising monetary costs, courts have seen escalating motion practice, overreaching, obstruction, and extensive, but unproductive discovery disputes – in some cases precluding adjudication on the merits altogether – when parties treat the discovery process in an adversarial manner.” And while many practitioners likely agree with Sedona that particularly in the face of escalating e-discovery, “[o]ver-contentious discovery is a cost that has outstripped any advantage,” these same practitioners cannot seem to resist adversarial conduct in discovery.

While we have not yet undergone the paradigm shift from adversarial to cooperative discovery, there are courts that have brought awareness, and many times also commitment, to cooperative discovery.[4] Many courts have specifically endorsed the Sedona Conference’s Cooperation Proclamation.[5] Some courts have ordered parties to confer and come to discovery agreements.[6] And some courts have enforced the agreements parties make.[7] However, most courts have merely “encouraged” cooperation,[8] which is unfortunately all that is expected under the Federal Rules of Civil Procedure and Sedona. Sedona and court pilot programs have made various resources available to judges and attorneys to initiate cooperative discovery.[9] And while the increased awareness of the benefits of cooperation are helpful, the necessary cultural shift will not happen by itself—it must be triggered by requirements for cooperation and by enforcement of those requirements. The 2015 rule amendments establish neither.


RULE 26(g) CAN BE USED TO ENFORCE COOPERATION

The rules should create an affirmative duty to cooperate in discovery. To the end of achieving proportional discovery, I suggest Rule 26(g), which was not amended in 2015, as a particularly appropriate place to include a duty to cooperate because it already requires parties to consider proportionality when proposing and responding to discovery. Rule 26(g) was amended in 1983 to parallel the amendments to Rule 11. It requires an attorney or unrepresented party to sign and certify that each discovery request, response, or objection—upon belief after reasonable inquiry—is:

(i) consistent with the rules and existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law;

(ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and

(iii) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.

While under the language of Rule 26(g), counsel and parties do have a duty under to consider proportionality when conducting discovery, unfortunately, Rule 26(g) is currently “[o]ne of the most important, but apparently least understood or followed, of the discovery rules.”[10]

“[T]he rule is intended to impose an affirmative duty on counsel to behave responsibly during discovery, and to ensure that it is conducted in a way that is consistent with the spirit and purposes of the discovery rules, which are contained in Rules 26 through 37.”[11] Rule 26(g) was written to explicitly direct the imposition of sanctions to deter excessive discovery and the evasion of discovery. Counsel must work together to balance the discovery each party desires with the proportionality factors to be considered in each case.[12] “Counsel cannot behave responsibly during discovery unless they do both, which requires cooperation rather than contrariety, communication rather than confrontation.”[13]


CONCLUSION

The 2015 amendments will not create the necessary paradigm shift to a culture of cooperation in discovery. The Sedona Cooperation Proclamation and many courts have embraced the ideal of cooperative discovery. But to actually achieve a cultural shift, counsel and the parties must be forced to cooperate. One method would be better enforcement of Rule 26(g) duties. Rule 26(g) already requires parties and counsel to consider proportionality when conducting discovery. The rule could be amended to be more explicit about the cooperation that is expected of the parties to achieve proportional discovery. Sedona and the courts should continue to provide resources to support cooperation among counsel. But ultimately, the duties of cooperation and proportionality must be enforced through sanctions. This is the only way to create the sought-after paradigm shift.

 

Ellen BelferEllen Ross Belfer, of counsel at León Cosgrove LLC, focuses her practice on complex commercial litigation in federal and state courts nationwide.

 

 

 

 

 

[1] Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 361 (D. Md. 2008) (Grimm, J.); see also Home Design Servs., Inc. v. Trumble, No. 09-CV-00964WYDCBS, 2010 WL 1435382, at *5 (D. Colo. Apr. 9, 2010) (“Counsel’s case management responsibilities should not been seen as antithetical to their role as advocate. The reality is that a well-managed case progresses through the discovery process more efficiently and cost-effectively.”).

[2] Hickman v. Taylor, 329 U.S. 495, 507 (1946).

[3] See Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 361 (D. Md. 2008)

[4] See, e.g., Bd. of Regents of Univ. of Nebraska v. BASF Corp., No. 4:04CV3356, 2007 WL 3342423, at *5 (D. Neb. Nov. 5, 2007) (“The overriding theme of recent amendments to the discovery rules has been open and forthright sharing of information by all parties to a case with the aim of expediting case progress, minimizing burden and expense, and removing contentiousness as much as practicable.”); Flanagan v. Benicia Unified Sch. Dist., No. CIV S-07-0333 LKK GGH2008 WL 2073952, at *10 (E.D. Cal. May 14, 2008) (finding that the plaintiff’s discovery responses indicated a lack of cooperative spirit ant that her “lack of communication and cooperation with defense counsel in regard to all discovery, undermine[d] the judicial process plaintiff herself has invoked.”); W. Convenience Stores, Inc. v. Suncor Energy (U.S.A.) Inc., No. 11-CV-01611-MSK-CBS, 2014 WL 1257762, at *8 (D. Colo. Mar. 27, 2014) (noting that the time and expense incurred by parties during months of discovery disputes could have been avoided if they followed principles of Cooperation Proclamation); U.S. Bank Nat. Ass’n v. PHL Variable Ins. Co., No. 12 CIV. 6811 CM JCF, 2013 WL 1728933, at *7 (S.D.N.Y. Apr. 22, 2013) (urging litigants to take seriously their obligation to cooperate in discovery and avoid burdening the court with repeated disputes); In re Spoonemore, 370 B.R. 833, 844 (Bkrtcy. D. Kan. 2007) (“Discovery should not be a sporting contest or a test of wills, particularly in a bankruptcy case where the parties’ resources are limited and the dollar value of the stakes is often low. When a party and its counsel are as intransigent and uncooperative in discovery as [the parties] have been in this matter, the Court has no choice but to impose sanctions that, hopefully, emphasize that the conduct sanctioned is both unprofessional and unacceptable.”).

[5] See, e.g., W. Convenience Stores, Inc. v. Suncor Energy (U.S.A.) Inc., No. 11-CV-01611-MSK-CBS, 2014 WL 1257762, at *8 (D. Colo. Mar. 27, 2014); Black & Veatch Corp. v. Aspen Ins. (UK) Ltd., No. 12-2350-SAC, 2014 WL 806122, at *2 (D. Kan. Feb. 28, 2014); Kleen Products LLC v. Packaging Corp. of Am., No. 10 C 5711, 2012 WL 4498465, at *19 (N.D. Ill. Sept. 28, 2012) (noting that more than 100 judges have endorsed the Cooperation Proclamation to date) objections overruled, No. 10 C 5711, 2013 WL 120240 (N.D. Ill. Jan. 9, 2013); Tadayon v. Greyhound Lines, Inc., No. CIV. 10-1326 ABJ/JMF, 2012 WL 2048257, at *6 (D.D.C. June 6, 2012); Moore v. Publicis Groupe, 287 F.R.D. 182, 192 (S.D.N.Y. 2012) adopted sub nom. Moore v. Publicis Groupe SA, No. 11 CIV. 1279 ALC AJP, 2012 WL 1446534 (S.D.N.Y. Apr. 26, 2012); Am. Fed’n of State Cnty. & Mun. Employees, Dist. Council 47 Health & Welfare Fund v. Ortho-McNeil-Janssen Pharm., Inc., No. 08-CV-5904, 2010 WL 5186088, at *5 (E.D. Pa. Dec. 21, 2010); Tamburo v. Dworkin, No. 04 C 3317, 2010 WL 4867346, at *3 (N.D. Ill. Nov. 17, 2010); Bldg. Erection Servs. Co., L.C. v. Am. Bldgs. Co., No. CIV.A. 09-2104-CM-DJ, 2010 WL 135213, at *1 (D. Kan. Jan. 13, 2010); Cartel Asset Mgmt. v. Ocwen Fin. Corp., 2010 WL 502721, at *13–14 (D. Colo.2010)

[6] See, e.g., Romero v. Allstate Ins. Co., 271 F.R.D. 96, 109 (E.D. Pa. 2010) (compelling parties to confer and come to some agreement on e-discovery issues such as custodians and search terms); Am. Fed’n of State Cnty. & Mun. Employees, Dist. Council 47 Health & Welfare Fund v. Ortho-McNeil-Janssen Pharm., Inc., No. 08-CV-5904, 2010 WL 5186088, at *5 (E.D. Pa. Dec. 21, 2010) (refusing to resolve parties’ differences and ordering parties to meet and confer cooperatively and in good faith, with unresolved matters to go to a special master paid for by the parties); Tamburo v. Dworkin, No. 04 C 3317, 2010 WL 4867346, at *3 (N.D. Ill. Nov. 17, 2010) (ordering the parties to actively engage in cooperative discussions to facilitate a logical discovery flow); Dunkin’ Donuts Franchised Restaurants LLC v. Grand Cen. Donuts, Inc., No. CV20074027(ENV)(MDG), 2009 WL 1750348, at *4 (E.D.N.Y. June 19, 2009)(directing the parties to meet and confer on developing a workable search protocol for ESI); Marion v. State Farm Fire & Cas. Co., No. 1:06CV969-LTSRHW, 2008 WL 723976, at *4 (S.D. Miss. Mar. 17, 2008) (demanding the mutual cooperation of the parties and threatening to impose sanctions on parties or counsel who engages in conduct that causes unnecessary delay or increased costs).

[7] See, e.g., Kay Beer Distrib., Inc. v. Energy Brands, Inc., No. 07-C-1068, 2009 WL 1649592, at *6 (E.D. Wis. June 10, 2009) (noting that the parties had agreed at their Rule 26 conference that either a hard copy or electronic copy would be produced depending on what was most cost-effective); Hassaine v. Home Depot, U.S.A., Inc., No. 09CV2215-MMA BGS, 2011 WL 1213094, at *4 (S.D. Cal. Mar. 30, 2011) objections overruled, (S.D. Cal. Aug. 19, 2011) (noting that the parties agreed in their joint scheduling report that electronic information may be produced in written format); White v. Honda of Am. Mfg., Inc., No. 2:07-CV-216, 2008 WL 5431160, at *5 (S.D. Ohio Dec. 31, 2008) (enforcing parties’ agreement in Rule 26 report to produce all documents on paper).

[8] See, e.g., W. Convenience Stores, Inc. v. Suncor Energy (U.S.A.) Inc., No. 11-CV-01611-MSK-CBS, 2014 WL 1257762, at *8 (D. Colo. Mar. 27, 2014) (noting that the time and expense incurred by parties during months of discovery disputes could have been avoided if they followed principles of Cooperation Proclamation); U.S. Bank Nat. Ass’n v. PHL Variable Ins. Co., No. 12 CIV. 6811 CM JCF, 2013 WL 1728933, at *7 (S.D.N.Y. Apr. 22, 2013) (urging litigants to take seriously their obligation to cooperate in discovery and avoid burdening the court with repeated disputes); Sentis Grp., Inc., Coral Grp., Inc. v. Shell Oil Co, 559 F.3d 888, 891 (8th Cir. 2009) (noting that “neither party behaved in a manner consistent with the spirit of cooperation, openness, and candor owed to fellow litigants and the court and called for in modern discovery).

[9] The Sedona Conference, The Sedona Conference Cooperation Proclamation: Resources for the Judiciary (2011), available at http:// www.thesedonaconference.org; The Sedona Conference, The Sedona Conference Cooperation Guidance for Litigators & In–House Counsel (2011), available at http://www.thesedonaconference.org; Seventh Circuit Electronic Discovery Pilot Program, Model Standing Order, available at http://www.discoverypilot.com; Southern District of New York Pilot Program, available at http:// www.nysd.uscourts.gov; District of Delaware, Default Standard for Discovery, Including Discovery of Electronically Stored Information (“ESI”), available at http://www.ded.uscourts.gov; Kleen Products LLC v. Packaging Corp. of Am., No. 10 C 5711, 2012 WL 4498465, at *19 (N.D. Ill. Sept. 28, 2012) objections overruled, No. 10 C 5711, 2013 WL 120240 (N.D. Ill. Jan. 9, 2013).

[10] Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 357 (D. Md. 2008).

[11] Id. (internal quotations omitted).

[12] Id. at 357-58.

[13] Id. at 358 (internal quotations omitted).