February 04, 2013 Top Story

Zealous Advocacy Balanced Against Collaborative Discovery

Court provides case study on how to work out differences through electronic discovery

Christina Michelle Jordan

At least one court has taken an active role in facilitating collaborative approaches to resolve discovery disputes involving electronically stored information (ESI) while respecting and balancing the attorneys’ zealous advocacy and professionalism in resolving the remaining issues. The federal district court assisted the parties in resolving several discovery issues through multiple meet-and-confer sessions but recognized the need to resolve several remaining issues via motion. Kleen Prods. LLC v. Packaging Corp. of Am.

Collaborative Discovery

Kleen Products originated from several complex class actions alleging antitrust violations against containerboard producers under Rule 26 of the Federal Rules of Civil Procedure. The actions were consolidated in the U.S. District Court for the Northern District of Illinois Eastern Division.

Despite the complexity in the cases and discovery issues, the court touted the parties’ collaborative approach, via meet-and-confer sessions, which ultimately resolved many of the discovery issues between the parties. The court itself facilitated several of the meet-and-confer sessions. Ultimately, the court said it hoped the opinion could “be of some help to others interested in pursuing a cooperative approach.” The court cited several model orders as guidelines for collaborative discovery.

Resolving Discovery Issues 

While the opinion assisted in framing a guideline for how parties should approach discovery collaboratively, it also provided significant guidance for courts on how to resolve the remaining disputes once they reach the formal motion stage. In the remaining discovery issues, the plaintiffs sought additional employee background information, identification of additional custodians, and restoration and review of the defendants’ backup tapes.

The court determined the proper test for the discovery dispute in the class action was the “proportionality test” laid out under Rule 26. That test allows the court to “limit discovery if it determines that the burden of the discovery outweighs the benefit.” Ultimately, it found the defendants established an undue burden in responding to the plaintiffs’ request, and the plaintiffs failed to explain how the benefit of obtaining the additional information would outweigh the defendants’ burden. Thus, the court determined that the plaintiffs’ requests did not pass the proportionality test.

In their request for additional custodians, the plaintiffs did not demonstrate that additional custodians would have important non-cumulative information. The defendants did not present evidence to support that producing information from additional custodians would be burdensome. The plaintiffs were allowed a small number of custodians since the case was in the early stages of discovery and the plaintiffs did not have input on the initial custodian determinations.

The court considered the plaintiffs’ request for reviewing the defendants’ backup tapes premature. The plaintiffs had not yet reviewed all of the documents produced thus far. The plaintiffs could revisit the issue at a later time, if necessary, after completing review of the defendants’ ESI.

Proportionality: Burden of Discovery versus Benefit

“I thought it was a well-reasoned decision. Clearly the judge gave a lot of thought to these issues and had observed a lot going back and forth between the parties. He was trying to work with the parties to reach an outcome that would further the discovery process and prevent the litigation from becoming mired down in discovery disputes,” says Joan K. Archer, Kansas City, MO, cochair of the ABA Section of Litigation’s Pretrial Practice & Discovery Committee.

Rule 26 provides discretion for limiting discovery to ensure that “discovery is reasonably proportional to the value of the requested information, the needs of the case, and the parties’ resources.” “Rule 26 is basically a guideline; there still is not a precise definition. The reason I think that is, is because it will always be contextual. What is proportional in one case is not proportional in another,” says Jessica K. Hew, Orlando, FL, also cochair of the Section of Litigation’s Pretrial Practice & Discovery Committee.

Professionalism and Zealous Advocacy

“The advocacy has to be weighed against the professionalism aspect of the issue at hand. In every case, there’s always a way to conduct discovery professionally,” says Hew. “What you “need” for your case versus what you “want” must be evaluated to determine which items of discovery are necessary and which are just desired. From that perspective, you are better able to assess what can be adjusted and what cannot, to be professional in discovery while zealously advocating for the client,” she adds.

There is tension between costs and ethical obligations to zealously advocate for your client, notes Archer. “You have to be able to exercise some judgment and say enough is enough. I’ve done the best I can for my client, under the circumstances, and with the resources that they have.”

Phased Discovery and Meet-and-Confer Sessions

Using phased discovery to address discovery issues “will generally aid the refinement and reduction of issues in discovery, thus making it more efficient and effective, particularly from a cost standpoint,” says Hew.

Courts favor collaborative approaches to resolving discovery issues. “Under most local rules and the Federal Rules, ‘meet-and-confer’ conferences are requirements to the discovery process,” says Hew. “With the advent of ESI, issues have become more complex. As a relatively new and emerging area of practice, courts are taking an interest to help litigants and their counsel to be able to manage the ESI and the technology that accompanies it.”

“The court’s recommendation for a collaborative approach is a good one and is largely practical,” says Archer. “Most judges would rather have parties reach an agreement on everything. While everyone may not walk away completely happy, everyone walks away somewhat happy with agreed upon results.”

Christina Michelle Jordan is an associate editor for Litigation News.

Keywords: pretrial practice, discovery, ESI, electronically stored information, proportionality, meet-and-confer

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