Although courts and commentators have lauded cooperation as a potential solution to discovery disputes and a means of reducing discovery costs run amok, there has been little analysis of how courts actually are analyzing cooperation in disputes. By comprehensively surveying recent case law, we have attempted to measure quantitatively how courts are considering parties’ failures to cooperate in addressing discovery disputes and, in turn, incentivizing parties’ cooperation.
The principle of cooperation is informed by several major sources. The Note to Federal Rule of Civil Procedure Rule 26, for example, states that “it is hoped that reasonable lawyers can cooperate to manage discovery without the need for judicial intervention.” Of further influence have been the Sedona Conference’s Cooperation Proclamation and The Case for Cooperation . In turn, the case law, including the prominent case Mancia v. Mayflower Textile Servs. Co. , shows an increasing press for greater cooperation.
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