In 1997, Judge D. Brooks Smith (W.D. PA) ordered the defendant in a class action to produce its counsel’s database of potentially responsive documents or suffer the consequences. One reason I sought that order was to cut through what would otherwise have been an untenably expensive process. Here are excerpts from the transcript, and the minute entry. Continue reading
In his most recent book, Harvard Law Professor Yochai Benkler surveys the sciences to summarize our current knowledge about what maximizes cooperation. Yochai Benkler, The Penguin and the Leviathan (1st ed. 2011). Continue reading
A new model of conflict resolution is gaining ground in our culture. It’s based on the idea of cooperatively restoring equilibrium instead of beating the other guy to death. Continue reading
This article is about how H5‘s rules-based approach to technology-assisted review provides a great framework for illustrating cooperation in ediscovery. But first, some context.
By this time next year, Rule 1 of the Federal Rules of Civil Procedure will have been amended to codify the principles of proportionality and cooperation between opposing counsel. Continue reading
In any case where emails between the parties will be discoverable, the parties should collect and jointly analyze the emails between them, before the initial scheduling conference, in order to agree on an efficient and proportional ediscovery plan and to attempt early resolution.
Even before either side does a first-pass review of their collected documents, they can easily identify which potentially-discoverable documents both sides already have in common. This process would be fast, inexpensive, and easy, and would allow new kinds of cooperation between parties.
As shown below, any federal court has the absolute statutory authority, which it should exercise immediately upon the filing of any action, to unilaterally enter an order that provides as follows (an “EDiscovery Privilege Order”):
1) No communications between any of parties hereto concerning ediscovery in this action shall waive the attorney-client privilege or work-product protection in this action or in any other federal or state proceeding, including but not limited to any federal court-annexed or federal court-mandated arbitration proceedings. Continue reading
The following Order encourages disclosures between the parties about ediscovery by making certain communications non-discoverable and inadmissible, and by ensuring that those communications will not waive any otherwise applicable privilege or protection.