Litigating at the Intersection of Cooperation and Sedona Principle 6

The terms “cooperation” and “transparency” continue to gain traction in the context of litigation discovery, and the emergence of these concepts has been accompanied by a gradual erosion of a party’s ability to respond to discovery with autonomy. Litigants are often forced to make a decision as the expectation of cooperation in discovery intersects with the understanding that it is the responding party who will be in the best position to formulate a comprehensive discovery plan to search for, gather, and ultimately produce its own electronically stored information (ESI). This is based on the premise that the responding party is best situated to understand its own systems, the formats of communication used by employees, and the lingo used to discuss the subject matter of the dispute.

The Sedona Conference Principle 6 recognizes that a responding party is in the best position to select relevant technology to appropriately gather and produce relevant information. On the other hand, the Sedona Conference Cooperation Proclamation, the 2016 Amendments to the Federal Rules of Civil Procedure, and countless judicial decisions extoll the benefits of cooperation. The intersection of Sedona Conference Principle 6 with the concepts of “cooperation” and “transparency” has been on full display in several recent decisions involving attempts by a requesting party to force a responding party to utilize technology-assisted review (TAR). These decisions signify courts’ expanding acknowledgment of TAR as an e-discovery tool and its impact in the context of parties’ obligations under Federal Rule of Civil Procedure 26.

Sedona Conference Principle 6 provides that “responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.” See ”The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production,” Volume 19 (2018), Principle 6, Comment 6.b., p. 118. The “Introduction” to Principle 6 explains that this “is premised on each party fulfilling its discovery obligations without direction from the court or opposing counsel, and eschewing ‘discovery on discovery,’ unless a specific deficiency is shown in a party’s production.”

The Sedona Conference has been championing the benefits of cooperation for more than a decade since the publication of the Sedona Conference Cooperation Proclamation in 2008. Countless judicial decisions have emphasized the need for cooperation since the Cooperation Proclamation. See Beaton v. Verizon New York, No. 20-CV-672 (BMC), 2020 WL 6449235 (E.D.N.Y. Nov. 3, 2020); Tadayon v. Greyhound Lines, No. CIV. 10-1326 ABJ/JMF, 2012 WL 2048257 (D.D.C. June 6, 2012). And the term “cooperation” is emphasized in the official comments to the 2016 amendments to Rule 1 of the Federal Rules of Civil Procedure. Specifically, the comment to Rule 1 provides:

Effective advocacy is consistent with—and indeed depends upon—cooperative and proportional use of procedure. This amendment does not create a new or independent source of sanctions. Neither does it abridge the scope of any other of these rules.

To effectuate that goal, Rule 26(f) requires cooperation by the parties in formulating a discovery plan and meaningfully meeting and conferring in the event a discovery dispute arises. In the event the parties fail to cooperate, Rule 37 provides the court the ability to sanction a party for failing “to cooperate in discovery.” While litigants may often seek for transparency in discovery, there is no such requirement in the Federal Rules of Civil Procedure.

The local rules for the district courts, judicial preferences and procedures, and state court rules often impose specific requirements for a party to outline good faith efforts taken before filing a motion to compel related to pretrial discovery. These procedures, and judicial decisions denying motions to compel for failure to certify as to good faith efforts to resolve, make absolutely clear that a failure to cooperate will rarely be tolerated. As discussed in the following cases, a requesting party cannot utilize the concept of cooperation and/or transparency, in the absence of established discovery deficiencies, to insist that a responding party utilize specific technologies to respond to discovery requests.

Recent Cases Involving TAR

Sedona Principle 6 is central to two recent federal decisions involving TAR. In Livingston v. City of Chicago, No. 16 CV 10156, 2020 WL 5253848 (N.D. Ill. Sept. 3, 2020), a dispute arose as to the proper methodology for identifying responsive ESI. On one hand, the plaintiff proposed that the defendant use a particular outside vendor to perform searches to identify responsive documents (without any additional responsiveness or privilege review), while the defendant advocated for an “active learning” TAR procedure to perform initial searches to identify a preliminary universe of documents. In deciding the plaintiff’s motion to compel, the court looked to the tenets of Sedona Conference Principle 6, holding that the defendant, as the responding party, was “best situated to decide how to search for and produce emails responsive to plaintiffs’ discovery requests.” The court also found that the defendant satisfied its obligation to make its production transparent by disclosing the specific TAR software it intended to use.

Likewise, in In re Mercedes-Benz Emissions Litigation, No. 216CV881KMESK, 2020 WL 103975, at *1 (D.N.J. Jan. 9, 2020), a Special Master appointed to administer discovery disputes rejected the plaintiff’s application to compel the defendant to use TAR, concluding that, pursuant to Sedona Conference Principle 6, the defendant was in the best position to determine the most appropriate method for producing ESI. The Special Master reached this conclusion notwithstanding his acknowledgement that TAR would “likely be a more cost effective and efficient methodology for identifying responsive documents.”

Parties cannot abuse the meet-and-confer process, particularly in cases involving costly TAR discovery, as made clear in Lawson v. Spirit AeroSystems, No. 18-1100-EFM-ADM, 2020 WL 1813395 (D. Kan. Apr. 9, 2020). There, following discovery-related motion practice after the parties failed to mutually agree on search terms or custodians, the parties discussed the utilization of TAR with respect to 300,000 potentially responsive documents. The defendants expressed their reluctance to use TAR, in light of the excessive costs already incurred on document collection, processing, and hosting, as well as the results of sampling exercises indicating an extremely low responsiveness rate. To allay these concerns, the court raised the possibility of granting the plaintiff’s request for TAR on the condition that the plaintiff would bear the ultimate costs of the TAR process.

At the plaintiff’s insistence (despite being on notice of the estimated TAR-related costs), the parties proceeded with TAR. The defendant filed a motion to shift costs for ESI, which was granted. The court observed that the plaintiff was aware of the possibility that the documents that were “technically” responsive were of “marginal (if any) relevance,” and, therefore, the TAR-related costs incurred by the defendant were disproportionate to the needs of the case. In a later decision addressing the defendant’s fee application, the court awarded the defendant $753,029.46 in TAR-related expenses—95% of the amount requested. The Lawson decision is a clear example of the age-old adage, “be careful what you wish for,” as the plaintiff ultimately was required to pay very significant TAR-related costs after insisting that the defendant utilize such technology.

Practice Tips

These recent decisions highlight the tightrope litigants must walk in balancing the expectation of cooperation with the reality that the responding party is almost always best situated to respond to discovery without interference from the requesting party. While courts expect cooperation in disputes involving TAR, there is an overall hesitancy to impose affirmative obligations on a responding party (in the absence of evidence of spoliation and/or discovery abuses). Where a requesting party is able to demonstrate spoliation by the responding party and/or significant inconsistences with document productions, that party is likely to be given wide berth from a court in fully exploring its adversary’s discovery efforts (or lack thereof). To avoid costly discovery on the discovery process, parties should always seek to enter into ESI protocols that outline limits to how far a party can press for details on the discovery decision-making process, and under what circumstances those limits may be relaxed. Parties should consider including certain baseline showings in an ESI protocol necessary before a party is permitted to seek “discovery on discovery.”

To hedge against a party’s decision to withhold cooperation in discovery, it is critical to prepare and formulate a bulletproof discovery plan. This plan should be clear and detailed and each step taken (or not taken) must be memorialized to defend against the assumption that the requesting party will be doing everything in its power to identify inconsistencies in a production via deposition testimony (statements by witnesses indicating that documents and/or communications exist), third-party subpoenas (third-party produces communications with responding party not otherwise produced) and comparison of documents produced by the requesting party to what was produced by the responding party (to identify documents produced by requesting party that responding party failed to produce as indicative of discovery deficiencies). A failure to formulate a detailed discovery plan is a risky endeavor, but a failure to formulate a discovery plan in conjunction with a refusal to cooperate is outright dangerous.

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Reprinted with permission from the February 9, 2021 issue of The Legal Intelligencer. © 2021 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved. For information, contact 877-257-3382 or reprints@alm.com or visit www.almreprints.com.