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."

Litigants in federal proceedings pushing for "greater cooperation and transparency" typically cite Rule 1 of the Federal Rules, with its admonition that parties aid the court in the "just, speedy and inexpensive determination of every action," and the Rule 26 requirement that parties meet and confer in good faith to "attempt to agree on a proposed discovery plan." E.g., Vasoli v. Yards Brewing Co., 2021 WL 5045920 (E.D. Pa. Nov. 1, 2021) ("Rule 26 of the Federal Rules of Civil Procedure demands cooperation between the parties' counsel ….") (emphasis added); In re Valsartan, Losartan, & Irbesartan Prods. Liab. Litig., 337 F.R.D. 610 (D.N.J. 2020) ("Electronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI") (emphasis added). They also cite the 2008 Sedona Conference Cooperation Proclamation (the Cooperation Proclamation), which promoted an "awareness of the need and advantages of cooperation" when dealing with "obstreperous counsel with no interest in cooperation."