In my July 2011 column, “Why E-Discovery Cooperation Is Best for Both Sides,” I discussed how cooperation between parties can work to their enlightened self-interest once they are sufficiently “enlightened” as to what that self-interest is. I reviewed the helpful suggestions in “The Sedona Conference Cooperation Guidance for Litigators & In-House Counsel (March 2011),” which makes the strong case that cooperation can take place only when counsel for both sides are familiar enough with e-discovery and IT generally not to be suspicious that they are being played for fools, counsel for the producing party produces to the requesting party a full data map of the client’s IT infrastructure and, of course, counsel understands the claims in the litigation and what possible e-discovery may be important to them.

In the recent matter of Pippins v. KPMG in U.S. District Court for the Southern District of New York, Magistrate Judge James L. Cott denied the defendant’s motion to preserve a sampling of only 100 hard drives which could contain relevant data, as opposed to the 2,500 hard drives the defendant had been preserving and an additional 6,500 it might have to preserve at the cost of, according to the defendant, over $1,500,000. Review of the court’s opinion reveals that better efforts at cooperation by the defendant, whose efforts should have included being more forthcoming and imaginative with regard to the sampling of the drives the defendant wished to preserve, i.e. The Sedona Conference’s “full data map,” could have led to the result defendant sought.

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