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January 31, 2017 Practice Points

Understanding “Susman Agreements” and Why You Want Them in Your Case-Management Orders

Practical tips for improving cooperation between counsel in your cases.

By Kathryn Honecker

Along with the Federal Rules of Civil Procedure’s 2015 amendments came a reemphasis of an attorney’s duty of cooperation under Rule 1. This practice point provides practical tips as to how you can improve cooperation between counsel in your cases.

To encourage cooperation, many courts incorporate all or some of prominent Susman Godfrey litigator Stephen D. Susman’s “Susman Agreements” into their case-management orders. Susman Godfrey posts “Susman Agreements” for both pretrial and trial on its website, and offers Word versions for attorneys to conveniently download to use in their own cases.

The Susman Agreements for pretrial comprise a dozen commonsense agreements that encourage cooperation, reduce costs, and head off common issues. Each of the Susman Agreements below links to Susman Godfrey’s full description as to why such an agreement should be reached, which is incredibly helpful knowledge for a young attorney attempting to negotiate with opposing counsel:

No. 1             Discovery Disputes Will Be Resolved with a Phone Call Between Lead Counsel.

No. 2             Depositions Will Be Taken by Agreement and Will Be Limited in Number and Length.

No. 3             The Parties Will Share the Same Court Reporter and Videographer.

No. 4             Papers Will Be Served by E-Mail on All Counsel.

No. 5             Documents Will be Produced on a Rolling Basis.

No. 6             Each Side Will Pick Five Custodians for Production of Electronically-Stored Records.

No. 7             The Parties Will Ask the Court to Choose a Protective Order.

No. 8             Exhibits Will Be Numbered Sequentially.

No. 9             The Parties Will Share the Expense of Imaging Deposition Exhibits.

No. 10           Neither Side Will Be Entitled to Discovery of Communications with Counsel or Draft Expert Reports.

No. 11           Production Does Not Waive the Privilege.

No. 12           Each Side May Select up to 20 Documents from the Other Side’s Privilege Log for In Camera Inspection.

It is important to reach agreement on these types of issues early in the case before either party perceives a tactical advantage from refusing such a request. However, by incorporating all or even a few of these agreements into your Rule 26(f) conference with opposing counsel, you likely can reduce the amount of avoidable discord in your case, reduce discovery costs, and improve your standing with the court and opposing counsel.

For additional tips as well as the history and rationale behind Rule 1’s duty of cooperation, please check out this Sound Advice podcast and newsletter article.

Kathryn Honecker is with Rose Law Group pc in Phoenix, Arizona, and is a cochair of the Consumer Litigation Committee.

Copyright © 2017, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).