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.” That may surprise many lawyers because for more than 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 Rules 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.
Why Was Rule 1 Amended?
Before the Federal Rules of Civil Procedure were enacted in 1938 and actions at law and suits in equity were combined as civil actions, federal courts hearing actions at law lacked both uniform procedural rules and a discovery process. A party having a claim at law was not entitled as a matter of right to take discovery of the opposing party’s theories or evidence, but instead was required to make its case using only its own evidence. This changed with the merger of law and equity and approval of the Federal Rules of Civil Procedure. As the Supreme Court put it in United States v. Procter & Gamble Co., 356 U.S. 677, 682, open discovery made “trial less a game of blindman’s bluff and more a fair contest with basic issues and facts disclosed.” Despite lawyers’ role as officers of the court, requiring them to “work for the advancement of justice while faithfully protecting the rightful interests of [their] clients,” Hickman v. Taylor, 329 U.S. 495, 510 (1947), years of discovery abuses led to a series of amendments aimed at encouraging lawyers’ openness and cooperation in discovery.
The same is true with the latest amendments. In 2015, Rule 1 was amended to include a duty of cooperation. Since the inaugural printing in 1938, Rule 1 has opened the Rules with a proclamation as to how civil litigation should proceed in federal courts. Until recently, Rule 1 provided the following guidance:
Rule 1. Scope and Purpose
These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.
This instruction, however, made no mention of a duty to cooperate. It also instructed courts—not parties—to “construe and administer” the Rules “to secure the just, speedy, and inexpensive determination of every action and proceeding.” Rule 1’s instruction would eventually change.
The Standing Committee on Rules of Practice and Procedure of the Judicial Conference of the United States “hope[d] to advance cooperation” by sharing Rule 1’s burdens with the parties. Comm. on Rules of Practice & Procedure, Report of the Advisory Committee on Civil Rules (2013) [hereinafter 2013 Committee Report]. The committee’s prior attempts to encourage cooperation focused on cooperation as to specific tasks, not litigation in general, but those attempts had not succeeded to the level desired. When the committee met in 2014 to discuss the upcoming amendments to the Rules, it focused on three themes that attendees at its 2010 conference at Duke University stressed were “too often missing in civil litigation,” including “a duty of cooperation in the discovery process.” The committee noted that “[r]easonable cooperation among adversaries is vitally important to successful use of the resources provided by the Civil Rules” and that “[p]articipants at the Duke Conference regularly pointed to the costs imposed by excessive adversarial behavior and wished for some rule that would enhance cooperation.” Comm. on Rules of Practice & Procedure, Report of the Advisory Committee on Civil Rules (2014).
However, the committee understood that it would be impossible to mandate cooperation, because “[i]t is difficult to identify a proper balance of cooperation with legitimate, even essential, adversary behavior.” 2013 Committee Report, supra. Instead, the committee “hope[d] to advance cooperation” by sharing Rule 1’s burdens with the parties. Accordingly, on December 1, 2015, the newly revised Rule 1 became effective and instructed the parties, not just the court, to employ and construe the Rules “to secure the just, speedy, and inexpensive determination of every action and proceeding.” The following subtle changes were made to Rule 1 to effectuate that purpose:
Rule 1. Scope and Purpose
These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.
Of course, the word “cooperation” is conspicuously absent from the amended rule. That is because the overall duty to cooperate in litigation is not found in the text of Rule 1, but in the 2015 advisory committee’s notes that follow it:
Rule 1 is amended to emphasize that just as the court should construe and administer these rules to secure the just, speedy, and inexpensive determination of every action, so the parties share the responsibility to employ the rules in the same way. Most lawyers and parties cooperate to achieve these ends. But discussions of ways to improve the administration of civil justice regularly include pleas to discourage over-use, misuse, and abuse of procedural tools that increase cost and result in delay. Effective advocacy is consistent with—and indeed depends upon—cooperative and proportional use of procedure.
While including a duty of cooperation appears to come from the Duke Conference, including that duty is better viewed as the inevitable result of a campaign to improve cooperation that began at least seven years earlier by the Sedona Conference, arguably the most persuasive authority on emerging legal issues, which had several of its members on the committee.
In 2008, the Sedona Conference published its Cooperation Proclamation to “promote cooperation in the discovery process to achieve the goal of a ‘just, speedy, and inexpensive determination of every action.'” The proclamation stemmed from its finding that adversarial conduct in discovery, especially in cases involving electronically stored information (ESI), grossly increased litigation costs and could preclude adjudication on the merits. Increased litigation costs also hindered access to justice to those with less financial resources, which could eventually cripple our justice system.
The Sedona Conference’s two primary papers, the Cooperation Proclamation and The Case for Cooperation, led the charge to promote cooperative discovery by seeking to change the way attorneys practice and interact with each other:
With this Proclamation, The Sedona Conference launches a national drive to promote open and forthright information sharing, dialogue (internal and external), training, and the development of practical tools to facilitate cooperative, collaborative, transparent discovery. This Proclamation challenges the bar to achieve these goals and refocus litigation toward the substantive resolution of legal disputes.
The Sedona Conference sought to place substantive dispute resolution at the center of litigation and initiate a “paradigm shift” in discovery, by raising awareness about cooperation’s benefits. Revised Rule 1 is the first step in that paradigm shift.
Is Cooperation Mandatory?
No. Following the Rules’ history of not mandating a duty of cooperation, Rule 1’s use of the term “should” confirms that the duty is only encouraged. The advisory committee’s notes make clear that Rule 1 does not create a new or independent source of sanctions. However, they also reiterate that “[e]ffective advocacy . . . depends upon . . . cooperative and proportional use of procedure.” With the amendment, the committee believed that “Rule 1 will encourage cooperation by lawyers and parties directly, and will provide useful support for judicial efforts to elicit better cooperation when the lawyers and parties fall short.” 2013 Committee Report, supra. In fact, the committee recognized that the new rule would not be a cure-all, but hoped it would do some good.
Courts may not agree that revised Rule 1 does not mandate a duty. In the past year, at least one district court has relied upon Rule 1’s duty of cooperation to encourage cooperation between feuding counsel and, despite the advisory committee’s notes to the contrary, threatened to sanction counsel who do not comply.
How Does Cooperation Benefit Legal Advocacy?
Being cooperative generates many benefits for you and your clients. Through cooperation, parties often can more quickly and efficiently resolve the merits of the case, meaning less discovery expense, which is the largest cost-driver in litigation. Cooperative formulation of a reasonable ESI search protocol in the early stages of litigation, for example, reduces the risk of supplementary searches and reviews in the future. Taking a reasonable view of discovery requests can avoid needless meet-and-confers and motion practice later. As The Case for Cooperation explains, “parties who follow a cooperative approach to discovery can often resolve quite legitimate differences regarding discovery through negotiated resolutions by finding a livable middle ground between two fully defensible positions, or trading ‘wins’ on multiple issues to create an overall resolution.”
A cooperative approach also improves your position, and your client’s position, with the court and opposing counsel. For example, many courts now require litigants to resolve discovery disputes through informal telephone conferences with the judge. For disputes requiring judicial resolution, attempts to cooperate foster goodwill with the judiciary and improve your reputation for candor in the legal community. As the Sedona Conference explained, “[t]he benefits of being represented by an attorney with a reputation of trustworthiness and candor is that the court and opposing parties will be more willing to accept representations[,] and the need to prepare and present ‘proof’ (and thus briefing, hearings[,] and other formal proceedings) may be lessened.”
Finally, taking a cooperative approach can lessen the amount of stress involved with litigation, which can reap numerous benefits in your professional and personal life, including your physical well-being.
How Can You Become a Cooperative Attorney?
To benefit from being a cooperative attorney, you must be open and forthcoming with information. You must work with the other party to define and focus discovery efforts and create ESI protocols. You must be prompt and reasonable when communicating with opposing counsel about discovery disputes and in responding to discovery requests.
Many courts and commentators have quickly supported these types of cooperative-encouraging norms. In the 2015 Year-End Report on the Federal Judiciary (Year-End Report), Chief Justice Roberts confirmed that attorneys “have an affirmative duty to work together, and with the court, to achieve prompt and efficient resolution of disputes.” Some district courts have tried to focus discovery and reduce discovery costs by ordering phased discovery, where discovery focuses on the most important and dispositive issues first. Many federal courts now have standing orders requiring informal resolution of discovery disputes through judicial telephone conferences in lieu of formal motions. Cooperation provisions are even being added to some ESI agreements. For example, in Rabin v. PriceWaterhouseCoopers LLP, No. 16-cv-02276, 2016 WL 5897732, at *1 (N.D. Cal. Oct. 11, 2016), the court’s ESI order included a cooperation provision, which provided that the parties “shall conduct discovery in a cooperative manner, including without limitation, by reasonably drafting discovery requests and responses in accordance with Fed R. Civ. P. 1 and 26(g)(1).”
And many courts have incorporated some of prominent litigator Stephen D. Susman’s “Susman Agreements” into their case management orders. The “Susman Agreements” comprise 15 commonsense agreements that encourage cooperation, reduce costs, and head off common issues. These agreements include serving papers by email, producing documents on a rolling basis, setting briefing schedules and page limitations for all pretrial motions, and sharing the expense of deposition exhibit imaging. 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.
The Sedona Conference also identified six steps as conducive to cooperative litigation:
- using discovery “point persons” within organizations to help counsel effectively access and manage electronic information;
- sharing information about every data source of possible relevance, even highly inaccessible ones, and scheduling early disclosures pertaining to ESI;
- developing, with opposing counsel, automated search methodologies;
- identifying the form or forms of production at an early stage;
- developing, with opposing counsel, a discovery budget, based on the gravity of claims involved; and
- utilizing “court-appointed experts, volunteer mediators, or formal ADR programs to resolve discovery disputes.”
In sum, cooperation is “characterized by communication rather than stonewalling, reciprocal candor rather than ‘hiding the ball,’ and responsiveness rather than obscuration and delay.” Paul W. Grim & Elizabeth J. Cabraser, The State of Discovery Practice in Civil Cases: Must the Rules Be Changed to Reduce Costs and Burdens, or Can Significant Improvements Be Achieved Within the Existing Rules? 18–19 n.30 (2011) (quoting The Case for Cooperation). When issues arise, as they will, using an Interest-based negotiation style focused on understanding and addressing the motivations behind the other party’s position, instead of a position-based style, will assist in reaching solutions in a cooperative manner.
Of course, you do not have to do the other attorney’s work. As the Sedona Conference explained, cooperation does not require you to betray your ethical duty to be a zealous advocate: “Cooperation in the discovery context does not mean giving up vigorous advocacy; it does not mean volunteering legal theories or suggesting paths along which discovery might take place; and it does not mean forgoing meritorious procedural or substantive issues.”
As explained in The Case for Cooperation, cooperation is consistent with an attorney’s duty to engage in zealous advocacy. The argument rests on a distinction between advocacy and adversarial conduct, the latter of which increases discovery costs, efforts, and time. The Sedona Conference describes cooperation as characterized by open communication and facilitation, not by forgoing valid discovery objections or compromising the client’s interest. In the Year-End Report, Chief Justice Roberts focused the distinction on necessary versus unnecessary discovery disputes, particularly those “that could have been avoided by cooperating and communicating according to procedural and ethical obligations.” Accordingly, bad faith objections, obstructionist conduct, and stonewalling breach cooperative norms. In contrast, you may still advocate vigorously, and you need not volunteer legal theories, suggest avenues for discovery, or “forgo meritorious procedural or substantive issues.”
Cooperation in your own cases may not be easily achieved. The clash of interests and impulses that fuel cooperative and adversarial conduct is not unique to law. Economists, psychologists, and philosophers have long struggled to find an answer to a seemingly simple question: Why do rational people cooperate? Only time will tell if the amendment to Rule 1 can achieve its lofty goals. For cooperation to be successful, its benefits must be appreciated by more than a solitary lawyer in a case. Instead, this mindset must be shared by all counsel, their clients, and the court. While a cooperative approach may not immediately be mastered by all, you can lead by example, mentor your associates, and encourage law schools to promote cooperation as a necessary legal skill. In addition to advocating for a cooperative approach and keeping abreast of the issue of cooperation through seminars and reading, you may also want to consider enrolling in a mindfulness course to learn skills that may help you set aside the negative emotions that often arise in litigation.
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