Can Amended Federal Rules Effectively Mandate Cooperation?

The day is finally at hand. Amendments to the Federal Rules of Civil Procedure will become effective in three short months, on Dec. 1. These amendments, which are intended to build upon the 2006 amendments to the rules, are meant to accomplish several objectives, including promoting effective and efficient case management, encouraging cost-effective and proportional discovery in civil actions, and advancing cooperation among counsel. This last area—cooperation—has been advocated by judges and influential members of the e-discovery community for years, but many practitioners have expressed doubt that such cooperation can be mandated from the top down. While the rules do give courts more leverage in situations where counsel will not cooperate, it remains to be seen whether these changes will spur the paradigm shift for which many judges and experts have been hoping.

Certainly, cooperation among counsel serves several purposes, including reducing initial discovery costs for collection, processing and review; narrowing the issues in litigation; and limiting potentially costly discovery disputes. This is especially true when a case involves e-discovery, because variables in data sources, archiving types, search terms, etc., have the potential to exponentially drive up discovery costs in even the smallest of matters. It makes logical sense, then, that parties should discuss e-discovery early in a case in order to limit pitfalls. Indeed, the drafters of the 2006 amendments to the Federal Rules of Civil Procedure recognized this and made the requirement of cooperation in e-discovery explicit by amending Rule 26(f) to “direct the parties to discuss discovery of electronically stored information during their discovery-planning conference.” In reality, however, Rule 16 conferences regarding e-discovery mostly became either cursory discussions where the parties agreed to “work out” any issues that may arise or lengthy battles in their own right regarding format, metadata fields, etc., that occasionally required court intervention. Very few federal judges mandated a specific e-discovery plan to be agreed upon by the parties before the 26(f) conference.