January 31, 2017 Articles

Clarifying Cooperation under Rule 1: A Command or a Recommendation?

At least one district court has threatened to sanction counsel who do not cooperate.

By Kathryn Honecker and Jonathan Udell

A 2013 Federal Judicial Center study found that “almost 75% of lawyers on average believe that discovery in their cases is proportionate and that the other side is sufficiently cooperative.” Thomas E. Willging & Emery G. Lee III, In Their Own Words: Attorney Views About Costs and Procedures in Federal Civil Litigation (Mar. 2010), http://www.fjc.gov/public/pdf.nsf/lookup/costciv3.pdf/$file/costciv3.pdf. That may surprise many lawyers because for at least a year, we’ve been hearing the opposite—that the 2015 Federal Rules of Civil Procedure amendments were targeted at improving problems with proportionality and cooperation in litigation. This article focuses on the rule’s amendments targeted at the latter—the attorney’s duty of cooperation. But to understand this amendment—why it was made, why you should comply, and what it requires—we must look to events well before 2013.

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