Why Even Aggressive Lawyers Should Want to Cooperate

In litigation, cooperation on e-discovery matters does not conflict with the advancement of clients’ interests. It enhances it. Meetings and conferences regarding e-discovery protocols are crucial. Clawback agreements regarding the inadvertent release of privileged documents, for example, should be reached in conference before they become necessary in the e-discovery process. Without such agreements, parties may have to make the difficult showing that they took “reasonable steps” to prevent disclosure in order to retrieve documents.

When parties agree upon a jointly stipulated ESI protocol, courts disapprove when one party fails to remain within the guidelines. In Progressive Casualty Insurance Co. v. Delaney, the court refused to order predictive coding at plaintiff’s request after the parties had agreed to manual review. Even though the court wrote in favor of predictive coding it concluded that ordering its use would only result in more disputes, stating that if “the parties had worked with their e-discovery consultants and agreed at the onset of this case to a predictive coding based ESI protocol, the court would not hesitate to approve a transparent mutually agreed upon ESI protocol. However, this is not what happened.”

Litigation is by nature adversarial, but lawyers should understand the positive impact that collaboration can have on the budget and outcome of the matter. When it comes to e-discovery the case for cooperation is even more compelling, with intricate legal doctrines, complicated technical protocols, and multiple inside counsel, law firm and service provider roles intersecting.