At the crux of today’s adversarial court system is the question of how to strike a balance between giving your client the strongest representation possible, and creating a hospitable environment for justice, fairness, and proportionality.
In fact, this question is at the very heart of e-discovery law and practice. In a highly litigious culture with exploding data volumes and a complex regulatory environment, it has to be.
At Relativity Fest, Relativity’s David Horrigan moderated a panel on which several experts—Grainne Bryan of McCann FitzGerald; Suzanne Clark and Chad Roberts of eDiscovery Co-Counsel, PLLC; and Kelly Twigger of ESI Attorneys LLC—posited the same opinion on this subject. Their message? Cooperation with both the court and opposing counsel is not just preferable, it’s essential to the modern practice of law.
Myth of Zealous Advocacy
David opened the panel with some food for thought, quoting US Magistrate Judge David Waxse: “The obligation for zealous advocacy is a myth—it hasn’t been in the rules since 1983.”
While attorneys should be passionate in their support for their clients, when it comes to e-discovery and its many costs and consequences, there can be a fine line between zeal and recklessness.
“We’ve had e-discovery fights in so many cases, and the reality is that you can spend the time in motion practice, or you can spend it getting documents together and reviewing your case,” warned Kelly Twigger, principal at ESI Attorneys LLC.
All of the panelists agreed that the energy spent on skirting around, shutting down, and tripping up opponents can be better spent on cooperative efforts to build e-discovery protocols, accurately and intelligently review and produce data, and put your most proportionate foot forward—for all parties involved.
High Stakes to Cooperate
Does setting down your zealot’s sword mean a magical peace will descend on your work? Certainly not. In fact, Chad Roberts, discovery counsel at e-Discovery Co-Counsel PLLC, maintained that competition and cooperation need not be mutually exclusive.
“Our most successful collaborative outcomes came in the most contentious episodes of litigation, not the most kumbaya,” Chad said. “You can have collaboration without feeling like you’re waiting for the unicorn of a collaborative lawyer on the other side.” It’s a matter of coming from a productive position and making cooperation work for your client, not catering to the whims of the other side.
To put it simply, Kelly said: “Somehow the discovery process is seen as not being important to understand, but it’s 75 percent of the case expenses. Civil litigation is won and lost on the documents, people. That’s never going to change. We e-discovery people are in charge of winning the cases. Cooperation is required to get to the information we need to do that.”
And that’s true even when you’re working on a relatively small case.
“I don’t think cases with less data require less cooperation. Just the fact that we have electronic information means discovery has a lot more cooperation requirements,” Kelly went on. “I recently reread the Cooperation Proclamation (which I encourage you in the crowd to do, and to share with your teams); there’s some great information about lawyers’ duties and I think cooperation is inherent to the entire process of a case.”
Special Circumstances: Establishing the Right TAR Protocol
The use of technology-assisted review (TAR) was a hot topic for the panel, and it’s a big subject for conversations on cooperation in general. With its applications increasing and greater awareness spreading about this time-saving option, it’s worth spending some time discussing in this respect. Specifically, people are asking: What level of transparency is required to build an effective approach to TAR?
“Transparency is a key part of cooperation,” Suzanne Clark, discovery counsel at e-Discovery Co-Counsel PLLC, reminded the crowd. “You want to be transparent, tell the other side what’s going on—on a technical level. You don’t need to share your big reveal with them, but we’re talking about collaborating on process.”
But what does that mean in the context of technology-assisted review? With plenty of judicial approval backing the use of TAR, is disclosing it necessary? Should parties be required to share training samples—whether they’re responsive or not? And when TAR acumen is unbalanced across the two sides of the case, should the more knowledgeable party take it upon themselves to educate opposing counsel on the technology?
Panelists had perhaps the most differing opinions on this subject out of any brought up during the session.
“In a nutshell, I’d say cooperation is necessary for the proper use of TAR. But cooperation is a huge balance to strike,” said Kelly, who took the position that, while cooperation is ideal, it doesn’t have to be a dealbreaker. “You almost always have an uneven distribution of knowledge on different sides of a case; I often find myself spending a lot of time educating opposing counsel and convincing them that I’m not trying to trick them. There’s no court order requiring us to disclose the use of TAR, [so] we’ll look at the benefit to the litigation and make a decision accordingly.”
Chad prefers a more defensive strategy. “Conceptually, I’m on board that you don’t need to disclose the use of TAR. But on the other hand, that drives people nuts. It plays on every anxiety they have,” he warned. “If they encounter a single bad apple in 100, they project it. It’s just human nature. So I say you’re better off inoculating yourself against any kind of future claim of misconduct.”
“With any tech you introduce into any business, you have to understand, first and foremost, what the technology will do and how it works,” said Grainne Bryan, CEO of legal technology solutions at McCann FitzGerald, who was involved in the landmark case that won judicial approval for TAR in Ireland for the first time. “Work closely with a provider—they need to come on that journey with you, to bring your client and partnership along to understand it all. We have to talk through the workflow, too, and that’s where the other side comes along for the journey.”
Where Do You Start?
Weaving a cooperative component into your case strategy starts from the very beginning of each project. Panelists had plenty of advice on how to make that happen, so stay tuned for another blog post in the coming weeks that will take you through their tips. (Make sure you’re subscribed to the blog if you don’t want to miss part two!)
In the meantime, how does your team feel about collaboration with opposing counsel during litigation? Let us know in the comments.