You’ve been retained by a client to represent them in a contentious civil dispute. Opposing counsel has just sent over a draft stipulation detailing a proposed scope of e-discovery obligations, the first paragraph of which defines “cooperation” as a requirement and mandates that the parties agree to transparency consistent with the federal and/or local rules of civil procedure. Sounds like a pretty good idea, as e-discovery costs are soaring and discovery motion practice is typically tedious and miserable. Agreeing to behave respectfully and amicably throughout the ordeal can’t possibly be wrong, can it?
As with most things e-discovery-related, litigators are wise to be wary. Receiving parties anxious for visibility into an opponent’s internal processes—such as document preservation, collection, review and privilege logging—are often quick to claim the rules “mandate” cooperation and transparency. But does this translate into a de facto obligation to share everything from non-responsive documents to attorney work product? Doesn’t this interpretation conveniently forget the mitigating—and equally critical—protections and guard rails of reasonableness and proportionality? We believe the true meaning of cooperation and transparency has been misunderstood by both counsel and the judiciary. As Shakespeare once put it, “They have been at a great feast of languages, and stol’n the scraps.”
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.
For questions call 1-877-256-2472 or contact us at [email protected]
