Should Lawyers Play Nice in E-Discovery?

 Brad Jenkins over at Trial Solutions pointed out a great LTN article today - E-Discovery: A Litigator's Perspective by David B. Mankuta. A great read about some very high level things that can be done to avoid some very basic pitfalls.  The upshot is that eDiscovery is expensive and one of the causes is a lack of cooperation among lawyers.  Mankuta states:

"Over the past 10 months, our client invested several hundred thousand dollars in the e-discovery process made more complicated by a lack of cooperation by the defendants."

Click on the "lack of cooperation" link and you find another good article, and the title of this post - Should Lawyers Play Nice in E-Discovery? by Jason Cruse. This one from February 2009. That article outlined a panel discussion by many thought leaders of the legal profession, including Richard Braman, founder of the Sedona Conference, Arthur Miller, a respected scholar at Harvard Law, Supreme Court Justice Stephen Breyer and various federal judges, executives and lawyers.  The panel discussion was heated at times.  The academics like Braman and Miller pointed out that lawyers are taught in law school cooperation and collaboration.  Practicing lawyers on the panel voiced loudly that is not reality and lawyers as advocates use all the tools at their disposal, including not cooperating in discovery.  Braman was shocked later stating:

"That experience stuck with me, and I decided it was time to put a stake in the ground and say that unless we find a way to solve the dispute over discovery, the legal system will in fact break."

That revaluation lead to the Sedona conference Cooperation Proclamation.  Have you read it?  There are numerous articles since the proclamation suggesting that not much has changed.  The reasons more collaboration does not take place is nothing more than strategy more often than not.  Those that "blame the lawyers" and think that discovery disputes will not always be a part of litigation strategy are simply naive and have not spent time in the trenches.  As an advocate, a lawyer has a duty to use whatever tools they have within ethical and legal bounds to represent their client.  Most follow the rules and if not clear, they interpute them.  That's their job, right?  This is not a new issue brought on by ESI.  Just magnified today more than it has in the "paper days".  Almost three decades ago when I was a court coordinator in Harris County, Texas, the young judge I was working for at the time had a brilliant idea.  He grew so weary of discovery disputes that one day he came to me and said, and I am paraphrasing of course:

"I want you to start screening the discovery docket.  Don't make calls when motions are filed", he said.  "Rather, wait until they come down for the hearing.  When they arrive, you ask them one question.  Have you visited face to face with each other and tried to work out the dispute?   If the answer is no, send them into the hallway and ask them to talk.  Tell them I am in a very foul mood today and that if they can't work out the problem, you can bet one of them won't be happy with my decision." 

 There were local rules in place at the time, mind you, that required certification that the parties had attempted to work out the dispute. The certification stated almost universally that they had tried and that no call was returned, or they for whatever reason could not reach the opposition.  At the time we had a docket of over 3,000 cases and 1.5 days of each week dedicated to discovery disputes.  I asked the question each Monday and most of the time the answer was no.  Into the hallway they went, and most of the time they return with an agreement and the motion was withdrawn.  Of course the word got out and within 3 months our discovery motions docket was reduced to just 1/2 day each week.  That judge did somewhat of the same thing for trials - sent the parties to mediation.  By the time the judge left the bench 4 years later, our docket was down to just 800 cases. 
Sure, there are similar rules in place now in many jurisdictions, but we need more than rules requiring cooperation.  Before things change, there must be very specific standards with teeth that lawyers understand.  In the paper days, form of production for example was simple - paper is paper and a copy is a copy.  Today, the game is more complex with ESI.  It is difficult to play a game where the rules are not clear.  The rules on eDiscovery are either non-existent, or simply absent and case law is all over the map.  Until there are very specific rules, careful planning with experienced experts must rule the day.  What is your approach to ESI in litigation?  Do you develop a plan with the opposition that includes significant detail written to avoid disputes?