At one time or another during a protracted and contentious discovery battle, we have all argued, somewhat sarcastically, that "what’s good for the goose is good for the gander." Now that we and, more importantly, our clients, have had ample time to experience the ever-increasing frustrations and costs associated with e-discovery, the goose and the gander should (finally) be able to agree on at least one thing: E-discovery can be incredibly burdensome, expensive, and a huge drain on resources regardless of which side of the proverbial "v." you are on. (In fact, the authors are offering their conclusions and recommendations based in part on their experiences responding to e-discovery requests and (mostly) working out disputes as each other’s adversary in a large commercial litigation.)

Parties thus have a real incentive to cooperate during discovery, and doing so can reduce all parties’ workloads and costs, thereby allowing the parties to save money for their respective clients and to focus their resources on substantive disputes. If that is not enough incentive, the courts have repeatedly made clear that they expect the parties to work together and to cooperate. Parties have been chastised, and, even worse, sanctioned, for failing to cooperate and consequently making discovery more costly and otherwise burdensome for their adversaries. Cooperating with opposing counsel therefore also allows the parties to reduce the likelihood that they will incur the wrath of judges and magistrates.

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