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.