It is helpful to have a list of pretrial agreements to try to reach with opposing counsel before discovery begins. Such agreements can make it easier for both sides, and do not advantage one side over the other. Waiting until the heat of battle to try to reach agreements inevitably causes one side to feel disadvantaged. These agreements can include agreeing to confer by telephone rather than written correspondence, the scheduling and number of depositions, reservation of objections (e.g., to relevance, lack of foundation, non-responsiveness, speculation, or to the form of the question) until trial, using a single court reporter/videographer, a uniform method of service of papers, and a protective order for confidential information.
The Federal Rules of Civil Procedure require the parties to cooperate in discovery. Fed. R. Civ. P. 26(c), (f), (g); 37(a) and (f). Under Rule 37(f) the court may sanction any party or attorney who “fails to participate in good faith in developing and submitting a proposed discovery plan.” Local rules in various courts have similar or expanded cooperation requirements.
A Rule 26(f) conference, when viewed as a foundation for a discovery plan rather than a perfunctory obligation, is a great launching pad for the creation of a road map and an opportunity for the parties to benefit from an efficient and effective discovery process. By discussing discovery needs and discovery capabilities, counsel may be able to reach agreement on the timing and scope of discovery as a “matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). Attorneys can resolve issues including document preservation, collecting, producing, and processing data such as ESI, and work product, or other privilege parameters, at the onset of a matter and minimize the need for judicial intervention. Resolving issues either because counsel recognize that the court would order it if litigated, or to expedite and economize the discovery process, are goals worth considering. Of course, there is no requirement that counsel agree, and as long as the parties take defensible positions, communicate those positions, and listen to what each other has to say, they have done everything that the discovery rules require.
Attorneys should discuss the expected sources and volume of production, and useable formats such as specific file types for review by the receiving party. Should production be rolling (including the beginning and ending dates as Rule 34 now requires), or otherwise sequenced? How much time is needed for review, and how will review be conducted (manual, electronic, redactions, claw-backs)? The better-prepared counsel is for a discovery-planning conference, and the more open the information exchanged, the less rabbit trails, problems, and consequent expense may be encountered. What the rules “seek[ ] to do is to ensure that the parties only present ‘real’ discovery disputes to the judge, not sloppy misunderstandings or uninformed stonewalling.” Steven S. Gensler, “Bull’s Eye View of Cooperation in Discovery,” 10 Sedona Conf. J. 363, 368 (2009 Supp.)
“Expected outcome-based cooperation” represents “the shortest, fastest, and least costly path to what the rules, as applied, ultimately would require [the parties] to do anyway.” This can include agreement “on a range of expected outcomes,” and “a point within that range” to which the parties can conform.
Avoiding discovery disputes and litigation as a result of errors of misunderstanding and miscommunication is in the best interests of the client and should be a goal of all counsel. Whether counsel’s discovery objectives are narrowly targeted or broad, efficiency reduces expense, and avoids unnecessarily incurring judicial labor and displeasure. For that reason, the effective conferral and cooperation with opposing counsel is an important step for lawyers to take their duties under Rules 26 and 37 seriously.
Steven D. Ginsburg is a partner with Duane Morris LLP in Atlanta, Georgia.