Last week I had the honor of moderating the main-stage judges’ panel at the DRI Product Liability Conference in Austin, Texas.  I was joined by three distinguished members of the Federal judiciary:

• The Hon. Alan D. Albright, U.S.D.J.
  U.S. District Court for the Western District of Texas
• The Hon. Andrew M. Edison, U.S.M.J.
  U.S. District Court for the Southern District of Texas
• The Hon. Xavier Rodriguez, U.S.D.J.
  U.S. District Court for the Western District of Texas

I introduced the topic of cooperation and proportionality in product liability litigation with an account of the exponential increase in electronically stored information (ESI) retained by manufacturers and the resulting costs and burdens when responding to document demands. We then turned to the December 2015 amendments to Rules 1 and 26(b) of the Federal Rules of Civil Procedure. Although the text of Rule 1 does not specifically reference “cooperation,” the drafters included an important reminder to the bar within the Advisory Committee Note:

“Effective advocacy is consistent with – and indeed depends upon – cooperative and proportional use of procedure.”

Historically, practitioners have had a tendency to believe that cooperation in litigation is inconsistent with zealous representation of one’s client. However, as the panel explained, cooperation does not mean capitulation. Rather, parties can benefit by working together and actively communicating to determine an appropriate scope of discovery that is “proportional to the needs of the case” as set forth in Rule 26(b) as amended in December 2015.

The discussion became quite spirited at times as the Judges expressed their own views regarding the handling of discovery disputes. Nevertheless, a handful of recommended best practices became clear:

• Engage in early and meaningful Rule 26 meet-and-confer conferences. In an ideal world, Rule 26 conferences would be held in person. Since this is frequently not practical, counsel should at least speak on the telephone rather than merely exchanging emails. In addition, the meet-and-confer requirement should not be viewed as merely a checkbox item, but rather an ongoing process. When used appropriately, this is an early opportunity for the parties to negotiate the scope of discovery, which should reduce the likelihood of subsequent discovery disputes.

• Be prepared for Rule 16 scheduling conferences. Too often counsel appear at Rule 16 conferences without knowing critical facts of the case or discovery-related information such as locations and volumes of ESI in their clients’ possession, custody or control. The reason for this is unclear, but it might be a combination of a mistaken belief that discovery begins once the Rule 16 conference is held and pressure from clients to avoid expending resources too early in litigation. As with Rule 26 conferences, the Rule 16 conference is an early opportunity for the parties to negotiate the scope of discovery, which should reduce the likelihood of subsequent discovery disputes.

• Counsel should avoid the old-school antagonistic approach to discovery. Every litigator is familiar with the type of aggressive and hostile correspondence that is often exchanged when a discovery dispute arises. Despite the occasional urge to partake in such exchanges, counsel is best advised to bite his or her tongue and remain as courteous as possible, even when faced with an opposing party that is attempting to weaponize discovery. Such correspondence can impact a judge’s view of the discovery dispute. Litigators must remember that a court is most likely to side with a party that it views as being most reasonable.

• When engaged in a discovery dispute and asserting proportionality, a responding party needs to provide the court more information than just the cost of discovery. An objection to further discovery demands on the basis of proportionality requires more than just a showing of the amount already spent on responding to discovery. The mere fact that a responding party has spent a large sum on discovery is likely a clear demonstration of good faith efforts to comply with discovery obligations. However, a responding party also should provide the court information to demonstrate that the process was thorough and well thought-out. (Also, see Sedona Principle 6.) At the same time, a party claiming a discovery deficiency and seeking additional discovery cannot rely on mere speculation.

• Consider involving a technically knowledgeable colleague or IT consultant to address ESI. Too often the lead attorney in a matter does not have the technical expertise to understand or explain issues associated with collecting, searching, reviewing and producing ESI. This can lead to difficulties and a resulting lack of progress during court conferences. For that reason, courts are increasingly willing to hear from a technically knowledgeable person, whether an attorney, a paralegal, or an outside IT consultant, with regard to ESI issues.

As data volumes continue to grow, and as discovery costs continue to increase, the need to achieve proportionality in discovery is becoming increasingly important. Cooperation (but not capitulation) toward opposing parties can create opportunities to narrow and tailor the scope of discovery through agreements to limit search terms, date ranges, and custodians.

A reasonable approach may involve agreeing to phased discovery or a tiered approach to discovery. Quite often when a phased approach to discovery is employed, litigants realize after the initial phase that further discovery is unnecessary; and of course, cooperation will frequently avoid the costs and risks associated with discovery motions. It is this approach of “cooperative and proportional use of procedure” that is needed to zealously represent one’s clients.

Thank you again to Judges Albright, Edison, and Rodriguez for participating in last week’s panel discussion.