Clarifying Cooperation under Rule 1: A Command or a Recommendation?

Editor's note: An earlier version of this article contained text placed erroneously. We apologize for the confusion.

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.” Thomas E. Willging & Emery G. Lee III, In Their Own Words: Attorney Views About Costs and Procedures in Federal Civil Litigation (Mar. 2010),$file/costciv3.pdf. That may surprise many lawyers because for at least 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 rule’s 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.

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Kathryn Honecker is chair of the Class Action Department at Rose Law Group PC in Scottsdale, Arizona. Jonathan Udell is a recent graduate of Sandra Day O'Connor School of Law at Arizona State University and a former law clerk at Rose Law Group.

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).


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