While the truce in Kleen Products v Packaging Corporation of America has cooled off the parties' predictive coding dispute until next year, eDiscovery motion practice in this case is just now intensifying. In response to the current round of motions surrounding plaintiffs' interrogatories and document requests, US Magistrate Judge Nan Nolan has issued 9-28-12 Discovery Order emphasising that the parties' discovery efforts should be collaborative and not combative. In particular, Judge Nolan has highlighted the significance of both cooperation and proportionality in conducting discovery.

Just as she did to resolve the parties' disagreement over the use of predictive coding, Judge Nolan relied on a Sedona Conference publication to decide the instant dispute. Citing The Sedona Conference Cooperation Proclamation, Judge Nolan urged counsel to not "confuse advocacy with adversarial conduct" in addressing discovery obligations. In that regard, the plaintiffs were singled out for propounding an interrogatory that "violated the spirit of cooperation that this Court has encouraged." The interrogatory was particularly troublesome because it requested information about defendant Georgia-Pacific's organisational structure that plaintiffs agreed not to seek since defendant voluntarily provided plaintiffs with the names, titles and company division of the 400 employees who received litigation hold notices. Given that the court itself had brokered this arrangement, Judge Nolan opined that plaintiffs' tactic "could have a chilling effect on both litigants and courts to engage in candid discussions."

The interrogatory was additionally objectionable because it violated the proportionality standards found in Federal Rule 26(b)(2)(C). Not only did the laundry list of details that the interrogatory sought regarding the defendant's 400 employees create an undue burden, such information was readily available from sources that were "more convenient, less burdensome, and less expensive." Relying on the proportionality rule and The Sedona Conference Commentary on Proportionality in Electronic Discovery, the court granted the defendant's motion for protective order and quashed the interrogatory.

Judge Nolan's opinion repeatedly spotlights the role that cooperation and proportionality play in accomplishing discovery in a "just, speedy and inexpensive" manner. Moreover, the judge repeatedly praised the litigants for approaching eDiscovery in cooperative fashion: "The Court commends the lawyers and their clients for conducting their discovery obligations in a collaborative manner." Indeed, the court went so far as to identify the numerous instances where motion practice had been avoided, including the predictive coding and search methodology dispute.

The Kleen Products case demonstrates that courts have raised their expectations for how litigants will engage in eDiscovery. Staking out unreasonable positions in the name of zealous advocacy stands in stark contrast to the clear trend that discovery should comply with the cost cutting mandate of Federal Rule 1. Cooperation and proportionality are two of the principal touchstones for effectuating that mandate.